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THE  LIBRARY 

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SCHOOL  OF  LAW 


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PRACTICE 


COURTS   OF    REVIEW 


THAT   SUBSTANTIALLY   FOLLOW   THE 


COLORADO  PROCEDURE. 


BY 

JOHN  C  FITNAM,  Esq., 

Of  the  Colorado  Bar. 


CHICAGO: 
E.    B.    MYERS   AND    COMPANY, 

LAW    PUBLISHERS. 
X893. 


67onpo 


COPYRIGHT,   1893, 
BY 

E.    B.    MYERS   AND   COMPANY. 


T 


PREFACE. 


In  preparing  the  following  little  work  on  practice  in 
courts  of  review,  I  have  confined  myself  in  the  citation 
of  authorities  chiefly  to  decisions  of  the  Supreme  Court 
of  Colorado,  A  careful  and  exhaustive  examination 
of  those  decisions  shows  that  almost  every  question 
of  procedure  of  any  importance  in  the  courts  of  review 
has  been  passed  upon  by  the  Supreme  Court  of 
Colorado,  and  the  proper  procedure  indicated,  in  the 
published  sixteen  volumes  of  the  State  Reports. 

The  procedure  therein  indicated  will  apply  in  a 
great  measure  to  the  procedure  in  the  courts  of 
review  of  nearly  every  other  State,  as  the  principles 
upon  which  cases  are  reviewed  are  substantially  the 
same  under  the  Code  of  every  State,  and  the  sole  dif- 
ference is  in  the  form  of  applying  them.  This  dif- 
ference is  often  more  apparent  than  real.  Thus  the 
appeal  without  bond  stands,  in  most  States,  in  lieu  of 
the  writ  of  error  in  Colorado  and  Illinois,  but  is 
practically  the  same  thing,  without  the  necessity  of 
issuing  the  writs  of  error  and  scire  facias.  For  the 
local  differences  in  practice  each  practitioner  must 


IV 


Preface. 


necessarily  look  to  the  Code  and  decisions  of  his  own 
State. 

This  book  is  not  intended  to  be  a  treatise  on  pro- 
cedure in  courts  of  review,  as  much  as  a  gtcide  to  the 
numerous  determinations  of  questions  as  to  what  is 
the  correct  procedure,  which  are  to  be  found  in  the 
Supreme  Court  Reports.  Experience  teaches  that 
want  of  familiarity  with  those  decisions  occasions  the 
mooting  of  questions  by  assignments  of  error,  where 
the  same  point  has  been  frequently  determined  by 
the  Supreme  Court.  This  want  of  acquaintance 
with  those  decisions  is  not  unfrequently  caused  by 
the  necessity  of  searching  the  sixteen  volumes  of 
Colorado  State  Reports,  the  point  sought  for  not 
being  mentioned  in  the  syllabi,  contained  in  the  in- 
dex to  the  volume,  in  which  the  decision  is  contained. 
This  book  will  enable  the  practitioner  to  refer  to 
those  decisions  with  greater  facility,  they  being  found 
at  those  sections,  under  which  he  will  most  probably 
look  for  them,  save  him  from  assigning  errors  on 
points  already  determined  by  the  court,  and  also 
the  labor  of  searching  the  reports  of  other  States 
for  authorities  on  points  decided  by  the  Supreme 
Court. 

The  first  portion  of  the  book  is  a  compilation  of 
the  constitutional  and  statutory  provisions  of  the 
State  of  Colorado  which  relate  to  procedure  in  the 
courts  of  review.  The  different  sections  of  the  Code, 
which  seem  to  have  been  injected  into  that  document 


Preface.  v 

at  haphazard,  have  been  brought  together,  so  that 
the  sections  which  relate  to  each  distinctive  matter 
will  be  found  in  consecutive  order.  This  constitutes 
the  first  chapter. 

The  second  portion  of  the  book  takes  up  the  pro- 
cedure in  both  courts  of  review,  with  the  original 
jurisdiction  of  the  Supreme  Court,  the  Court  of  Ap- 
peals of  Colorado  having  no  original  jurisdiction, 
followed  by  the  appellate  jurisdiction  and  procedure 
of  both  courts.  The  procedure  in  both  courts  being 
identical,  what  is  said  is  applicable  to  both  courts, 
unless  otherwise  noted. 

The  chapter  on  bills  of  exceptions  has  been  made 
full  and  will  be  found  of  much  value  to  practitioners 
in  the  trial  court,  especially  the  sections  which  treat 
of  ''  objections  to  evidence." 

The  "writ  of  error,"  both  in  civil  and  criminal 
cases,  is  treated  of  first  ;  next  follows  "  appeals," 
until  the  point  is  reached  at  which  the  procedure  in 
both  classes  of  cases  becomes  identical. 

The  chapter  on  "motions"  will  be  found  useful 
not  only  in  courts  of  review,  but  also  in  the  trial 
courts. 

After  the  "appeal"  follows  "admission  of  at- 
torneys," and  last,  "contested  election  of  judges,"  of 
which  the  Supreme  Court  has  exclusive  original 
jurisdiction. 

I  submit  this  work  to  my  brother  members  of  the 
robe,  with  the  hope  that  it  may  serve  as  a  guide  to  a 


VI 


Preface. 


correct  practice  in  our  courts  of  review,  may  relieve 
practitioners  therein  from  the  labor  of  searching  for 
decisions  on  points  of  practice  decided  by  those 
courts,  and  the  courts  themselves  from  the  necessity 
of  reiterating  practice  decisions,  which  counsel  have 
failed  to  notice,  on  account  of  their  being  scattered 
through  the  different  volumes  of  the  reports.  If  it 
prove  useful  to  my  brethren  in  their  practice  I  will 
have  attained  the  object  for  which  I  entered  on  its 
preparation.  My  rule  has  been  to  point  out  "  what 
to  do  and  how  to  do  it,"  with  what  should  not  be 
done  in  each  case. 

JOHN  C.  FITNAM. 
Denver,  Col.,  January,  1893. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

Provisions  of  the  Constitution  and  the  Statutes  in  Rela- 
tion to  the  Supreme  Court  and  the  Court  of  Appeals. 

Sec.       I.  Judicial  power  of  State  —  where  vested. 

2.  Appellate  jurisdiction. 

3.  Original  jurisdiction. 

4.  Three  judges  —  quorum. 

5.  Terms  to  be  held  at  Capital —  three  terms  each  year. 

6.  No  quorum  present  —  adjournments. 

7.  Special  Terms — rule  of  Supreme  Court. 

8.  Supreme  Court  may  make  rules. 

9.  Open  sessions  —  oral  arguments  —  rules  of  Supreme  and 

Appellate  Courts  in  relation  thereto. 

10.  Undisposed  of  causes  continued. 

11.  Opinions  and  decisions  to  be  in  writing. 

12.  Supreme  judge  not  to  act  as  attorney. 

13.  When  judge  disqualified  to  sit  in  a  case. 

14.  When  Supreme  Court  equally  divided  in  opinion. 

15.  Limitation  of  appellate  jurisdiction. 

16.  Court  of  Appeals  — jurisdiction  — judges. 

17.  Jurisdiction  as  to  subject-matter. 

18.  Court  of  record  —  seal  —  may  issue  all  necessary  writs. 

19.  May    adopt    rules  —  procedure    similar    to    that   of  the 

Supreme  Court. 

20.  Causes  pending  in  Supreme  Court  may  be  transferred  to 

Court  of  Appeals. 

21.  Terms  of  Court  of  Appeals. 


2  Table  of  Contents. 

Sec.    22.  Writs  of  error  from  and  appeals  to  the  Supreme  Court. 

23.  Causes  transferred  to  Supreme  Court. 

24.  Appeals  to  Supreme  Court  — when  allowed. 

25.  Appeals  —  when  to  be  prayed. 

26.  Conditions  on  which  appeal  granted. 

27.  Trial  court  may  limit  security  — when. 

28.  Supreme  Court  may  allow  appeal  bond  amended. 

29.  Record  —  when  to  be  filed. 

30.  Original  bill  of  exceptions  may  be  taken  to  the  Supreme 

Court. 

31.  Any  one  of  the  parties  may  appeal. 

32.  Judgment  on  dismissal  of  appeal. 

33.  Appeal  dismissed  without  prejudice. 

34.  Duty  of  clerk  of  trial  court  on  dismissal  of  appeal. 

35.  Court   of  review  may  give  final  judgment  —  proceedings 

subsequent  to  final  judgment  reviewable. 

36.  Writ  of  error  —  when  it  lies. 

37.  Time  to  bring  writ  —  exceptions. 

38.  Scire  faczas  —  se\>dir<ite  writs  to  different  counties 

39.  Service  of  scire  facias  by  publication. 

40.  Writ  of  error,  when  a  supersedeas. 

41.  Motion  for  a  new  trial  not  necessary. 

42.  Original  papers  may  be  transmitted  to  Supreme  Court. 

43.  Judgment,  when  court  equally  divided  in  opinion. 

44.  Supreme  Court  may  give  judgment  or  remand. 

CHAPTER  II. 

The  Supreme  Court  and  Court  of  Appeals  —  Their 
Jurisdiction  and  Powers. 

THE  SUPREME  COURT. 

45.  Jurisdiction  of  the  Supreme  Court. 

46.  Original  jurisdiction  of  Supreme  Court. 

47.  The  mention  of  the  cases  in  section  3  a  limitation  of  juris- 

diction. 

48.  Original  jurisdiction  to  disbar  an  attorney. 

49.  Practice  as  to  cases  within  original  jurisdiction. 

50.  Original  jurisdiction,  how  invoked. 


Table  of  Contents.  3 

Sec.     51.   Cases,  how  to  be  brought.     Relator. 

52.  Jurisdiction  of  judges  in  habeas  corpus. 

53.  The  appellate  jurisdiction. 

THE  COURT  OF  APPEALS. 

54.  The  Court  of  Appeals. 

55.  Jurisdiction  of  the  Court  of  Appeals. 

56.  Transfer  of  causes  from  Supreme  Court  to  Court  of  Ap- 

peals. 

57.  Transfer  of  causes  from  Court  of  Appeals  to  the  Supreme 

Court. 

58.  Time  within  which  application  for  transfer  must  be  made. 

59.  Limit  of  appellate  jurisdiction  of  Supreme  Court. 

60.  Final  judgment  —  what  —  amount  as  test  of  jurisdiction. 

61.  What  is  a  judgment. 

62.  Classes  and  kinds  of  judgments. 

63.  Instances  of  "  final  "  judgments,    reviewable  on  error  or 

appeal. 

64.  Franchise  —  freehold  —  construction  of  constitutional  pro- 

vision. 

65.  Jurisdiction  to  review  — how  called  into  action. 

CHAPTER  III. 

Of  Writs  of  Error. 

66.  Writ  of  error  —  what  is  a. 

67.  Proceeding  in  error  a  new  suit. 

68.  Parties  to  writ  of  error. 

69.  Procedure,  when  record  of  trial  court  does  not  show  who 

are  the  proper  parties. 

70.  Procedure  by  defendant  in  error,  if  improper  parties  are 

joined. 

71.  Who  plaintifi  in  error. 

72.  Procedure,  when  one,  who  should  be  a  plaintiff  in  error, 

refuses  to  be  a  party  to  the  proceeding. 

73.  When  a  writ  of  error  will  lie. 

74.  No  separate  writ  of  error  to  proceedings  subsequent  to 

final  judgment. 

75.  Writ  of  error  —  statute  of  limitations. 


4  Table  of  Contents. 

Sec.    76.  Procedure  to  procure  a  writ  of  error. 
77  Writ  of  error  —  contents. 

78.  Issuance  of  writ  is  jurisdictional. 

79.  Writ  of  error  —  how  served. 

80.  Supersedeas  —  how  procured. 

81.  Procedure  to  ^^xocnx^  supersedeas. 

82.  Y oxm.  ol supersedeas— hovi^. 

83.  Y'^i^cX.o'i  supersedeas. 

84.  Return  on  writ  —  when  a  supersedeas. 

85.  Supersedeas,  when  appeal  dismissed  without  prejudice. 

CHAPTER  IV. 

Of  the  Record. 

86.  Record,  what  constitutes  the. 

87.  Modifications  made  by  the  Code. 

88.  Record  necessary  on  writ  of  error, 

89.  Of  the  transcript  of  the  record. 

90.  /"r^^^^  tor  transcript;  form. 

91.  Transcript,  form  of. 

92.  Procedure,  when  record  is  defective. 

93.  When  record  to  be  filed  on  appeal. 

CHAPTER  V. 
Exceptions  and  Bills  of  Exceptions. 

94.  Of  exceptions  to  the  rulings  of  the  court. 

95.  What  is  an  exception  ? 

96.  Exceptions  allowed  by  the  Code. 

97.  When  no  exception  necessary. 

98.  Bill  of  exceptions  in  criminal  cases. 

99.  When  exceptions  to  be  taken. 

too.  When  bill  to  be  presented  to  the  judge. 

101.  Duty  of  judge  to  sign  the  bill. 

102.  When  judge  refuses  or  neglects  to  sign. 

103.  When  judge  absent  from  the  State. 

104.  Original  bill  may  be  filed  in  Supreme  Court. 

105.  When  bill  seeks  to  embrace  depositions. 

106.  Original  papers  not  to  be  in  bill. 


Table  of  Contents.  5 

Sec.  107.   Bill  of  exceptions  —  its  contents. 

108.  Some  rulings  as  to  bills  of  exceptions. 

109.  Exception  to  judgment,  when  necessary. 
no.  Bill  of  exceptions — evidence  on  the  trial. 

111.  Objections  to  evidence. 

112.  Of  procuring  an  amended  bill  of  exceptions. 

113.  Motion  for  a  new  trial,  when  unnecessary. 

CHAPTER  VI. 

The  Assignment  of  Errors. 

114.  Of  the  assigning  of  errors. 

115.  Some  decisions  as  to  matters  not  assignable  for  error  in 

the  court  of  review  in  the  first  instance. 

116.  What  assignable  for  error. 

117.  Want  of  facts  assignable  for  error. 

118.  Other  errors  in  record  proper. 

119.  Errors  appearing  by  bill  of  exceptions. 

120.  Matters  of  judicial  discretion  not  assignable. 

121.  Error  in  sustaining  or  overruling  a  challenge. 

122.  Error  in  instructions. 

123.  Form  of  assignment  of  errors. 

CHAPTER  VH. 
.     The  Scire  Facias. 

124.  Of  scire  facias  on  writ  of  error  —  form  of. 

125.  Scire  facias —  when  to  be  made  returnable. 

126.  Service  oi  scire  facias  by  publication. 

127.  Forms  of  affidavits. 

128.  Writs  of  error  amendable. 

CHAPTER  Vni. 
Procedure  by  the  Defendant  in  Error. 

129.  Appearance,  entry  of. 

130.  Of  motions. 

131.  Procedure  on  motions. 

132.  Motions  must  be  made  in  apt  time. 


6  Table  of  Contents. 

Sec.  133.  Motion  to  dismiss  writ  of  error. 

134.  Pleas  before  joinder  in  error. 

135.  Tlie  joinder  in  error. 

136.  Of  cross-errors. 

137.  Supplemental  transcript  of  the  record. 

138.  Suggestion  of  diminution  of  the  record. 

139.  Special  pleas  to  the  assignment  of  errors. 

140.  The  issue  made  by  the  joinder  in  error. 

141.  Of  reversible  errors. 

142.  Instances  of  reversible  error. 

143.  Non-reversible  errors,  because  raised  in  appellate  court  in 

the  first  instance. 

CHAPTER  IX. 
Procedure  after  Filing  Transcript. 

144.  Procedure  after  filing  transcript. 

145.  Rules  of  the  courts  of  review. 

146.  Abstracts  of  the  record. 

147.  Briefs  of  counsel  —  what  to  contain. 

148.  Briefs  —  when  and  how  many  to  be  filed. 

149.  Rule  as  to  computation  of  time. 

150.  Leave  to  file  brief  after  time. 

151.  Dismissal  for  non-compliance  with  the  rule. 

152.  Oral  argument. 

153.  Advancement  of  causes  for  decision. 

154.  Agreed  cases. 

155.  The  judgment  on  appeal  or  writ  of  error. 

156.  Opinions  on  cases  decided. 

157.  Rehearing  of  causes. 

158.  Procedure   in   trial   court  on  affirmance  or  dismissal   by 

court  of  review. 

CHAPTER  X. 

Writ  of  Error  in  Criminal  Cases. 

159.  Criminal  trials  according  to  the  course  of  the  common 

law. 

160.  Writ  of  error  a  writ  of  right. 


Table  of  Contents. 

Sec.  i6i.  Exceptions  and  bill  of  exceptions. 

162.  Who  may  take  exceptions  in  criminal  cases. 

163.  The  record  proper  in  criminal  cases. 

164.  Supersedeas,  how  obtained. 

165.  Effect  of  supersedeas^  bail. 

166.  Reversible  error  in  criminal  cases. 

167.  Procedure  after  judgment  of  Supreme  Court. 

CHAPTER  XI 
Of  Appeals. 

168.  Appeal  from  District  and  County  Courts. 

169.  Appeal  —  What  is  an. 

170.  An  appeal,  how  taken  —  Procedure. 

171.  When  an  appeal  will  lie. 

172.  To  what  courts  an  appeal  lies. 

173.  Direct  appeal  to  Supreme  Court. 

174.  Decisions  as  to  franchise  and  freehold. 

175.  Joint  appeal,  when  maintainable. 

176.  The  appeal  bond,  form  of. 

177.  Appeals,  when  allowed  without  bond. 

178.  Appeal  bonds  amendable. 

179.  Appeal  to  be  docketed,  when. 

180.  When  jurisdiction  of  court  attaches. 

181.  Procedure  by  appellee. 

182.  Appeal,  when  dismissed. 

CHAPTER  Xn. 

Of  Motions  and  Orders. 

183.  What  is  an  order. 

184.  What  is  a  motion. 

185.  Motions  where  to  be  made. 

186.  Notice  of  motion  — when  required. 

187.  Motion  —  when  to  be  supported   by  affidavit. 

188.  Of  entitling  the  affidavit. 

189.  Notice  of  motion. 


8  Table  of  Contents. 

Sec.  190.  Notice — how  to  be  served.  Service  —  personal.  Ser- 
vice on  attorney's  clerk.  When  no  person  in  attorney's 
office.  Where  attorney's  office  is  not  open.  Where  at- 
torney's residence  is  not  known.  Service  on  a  party 
to  the  action. 

191.  Service  by  "  mail."     When  authorized. 

192.  Service  by  mail.     Distance.     Time. 

193.  Presumption  from  proper  mailing  of  notice. 

194.  Proof  of  service  of  notice. 

195.  Forms  of  proof  of  service.     Personal  service.     If  left  at 

office.     If  no  one  in  office.      Service  by  mail. 

196.  Hearing  of  motion. 

CHAPTER  XIII. 
Admission  of  Attorneys. 

197.  License  from  Supreme  Court. 

198.  Qualifications  to  obtain  license. 

199.  Additional  requirement  by  the  Supreme  Court. 

200.  Standing  committee  for  each  district. 

201.  Oath,  form  of. 

202.  Roll  of  attorne5^s,  what  to  state. 

203.  Attorneys  from  other  States,  how  admitted. 

204.  Striking  name  from  the  roll. 

205.  Procedure  under  foregoing  provisions. 

206.  Effect  of  disbarment. 

207.  Readmission  of  disbarred  attorney. 

CHAPTER  XIV. 
Contested  Elections. 

208.  Contests  of  election  of  judges. 

209.  Contest,  how  initiated. 

210.  Contests  of  statement. 

211.  Grounds  for  contesting  election. 

212.  Statement  continued. 

213.  Time  of  filing  statement. 

214.  The  petition  —  contents. 

215.  Procedure  after  filing  petition. 


PRACTICE 


IN 


COURTS   OF    REVIEW. 


CHAPTER  I. 

Provisions  of  the  Constitution  and  the  Statutes  in  Rela- 
tion to  the  Supreme  Court  and  the  Court  of  Appeals. 

Sec.     I.  Judicial  power  of  State  —  where  vested. 

2.  Appellate  jurisdiction. 

3.  Original  jurisdiction. 

4.  Three  judges  —  quorum. 

5.  Terms  to  be  held  at  Capital  —  three  terms  each  year. 

6.  No  quorum  present  —  adjournments. 

7.  Special  Terms  —  rule  of  Supreme  Court. 

8.  Supreme  Court  may  make  rules. 

9.  Open    sessions — oral  arguments  —  rules  of  Supreme  and 

Appellate  Courts  in  relation  thereto. 

10.  Undisposed  of  causes  continued. 

11.  Opinions  and  decisions  to  be  in  writing. 

12.  Supreme  judge  not  to  act  as  attorney. 

13.  When  judge  disqualified  to  sit  in  a  case. 

14.  When  Supreme  Court  equall}'  divided  in  opinion. 

15.  Limitation  of  appellate  jurisdiction. 

16.  Court  of  Appeals  —  jurisdiction  —  judges. 

2 


10  Practice  in  Courts  of  Review. 

Sec.  17.  Jurisdiction  as  to  subject  matter. 

18.  Court  of  record  —  seal  —  may  issue  all  necessary  writs. 

19.  May    adopt    rules  —  procedure    similar    to    that    of   the 

Supreme  Court. 

20.  Causes  pending  in  Supreme  Court  may  be  transferred  to 

Court  of  Appeals. 

21.  Terms  of  Court  of  Appeals. 

22.  Writs  of  error  from  and  appeals  to  the  Supreme  Court. 

23.  Causes  transferred  to  Supreme  Court. 

24.  Appeals  to  Supreme  Court  —  when  allowed. 

25.  Appeals  —  when  to  be  prayed. 

26.  Conditions  on  which  appeal  granted. 

27.  Trial  court  may  limit  security  —  when. 

28.  Supreme  Court  may  allow  appeal  bond  amended. 

29.  Record  —  when  to  be  filed. 

30.  Original  bill  of  exceptions  may  be  taken  to  the  Supreme 

Court. 

31.  Any  one  of  the  parties  may  appeal. 

32.  Judgment  on  dismissal  of  appeal. 

33.  Appeal  dismissed  without  prejudice. 

34.  Duty  of  clerk  of  trial  court  on  dismissal  of  appeal. 

35.  Court   of  review  may  give  final  judgment  —  proceedings 

subsequent  to  final  judgment  reviewable. 

36.  Writ  of  error  —  when  it  lies. 

37.  Time  to  bring  writ  —  exceptions. 

38.  Scire  facias  —  separate  writs  to  different  counties. 

39.  Service  of  scire  facias  by  publication. 

40.  Writ  of  error,  when  a  supersedeas. 

41.  Motion  for  a  new  trial  not  necessary. 

42.  Original  papers  may  be  transmitted  to  Supreme  Court. 

43.  Judgment,  when  court  equally  divided  in  opinion. 

44.  Supreme  Court  may  give  judgment  or  remand. 


[The  provisions  of  the  Constitution  of  the  State  of  Colorado 
which  have  relation  to  the  Supreme  Court,  are  to  be  found  in 
article  VT  of  that  instrument.  We  give  here  only  such  portions  of 
the  Constitution  and  Statutes  as  directly  relate  to  the  procedure  ia 
that  court  and  the  Court  of  Appeals.] 


Supreme  Court  —  Jurisdiction.  ir 

Judicial  Power  of    State  —  Where  Vested. 

Sec.  I.  The   judicial   power    of   the    State,    as   to> 
matters  of  law  and  equity,  except  as  in  the  Constitu- 
tion otherwise  provided,  shall  be  vested  in  a  SiLpreme 
Court     .     .     .     and  such  other  courts,    as    may    be 
created  by  law. 

The  above  section  is  as  it  now  reads.  Prior  to  the 
amendment,  adopted  November  2,  1886,  the  words:. 
"  For  cities  and  incorporated  towns  "  followed  the 
words:  "  Created  by  law."  As  the  section,  so  con- 
structed, prohibited  the  establishment  of  other 
courts,  than  those  for  "  cities  and  towns,"  the  Con- 
stitution was  so  amended  as  to  permit  of  the  creation 
of  other  courts  than  municipal  courts,  and  after  the 
adoption  of  the  amendment,  the  Court  of  Appeals 
was  created,  under  this  amendment.^ 

Appellate  Jurisdiction. 

Sec.  2.  The  Supreme  Court,  except  as  otherwise 
provided  in  this  Constitution,  shall  have  appellate 
jurisdiction  only,  which  shall  be  co-extensive  with 
the  State,  and  shall  have  a  general  superintending 
control  over  all  inferior  courts,  under  such  regula- 
tions and  limitations  as  may  be  prescribed  by  law.^ 

Original  Jurisdiction. 

Sec.  3.  It  shall  have  power  to  issue  writs  of  habeas 
corpus,  mandamus,  quo  warranto,  certiorari,   Injunc- 

1  Mills'  Ann.  Stat,  §  373.  "^  Mills'  Ann.  Stat,  §  374- 


12  Practice  in  Courts  of  Review. 

tion  and  other  remedial  writs,  with  authority  to  hear 
and  determine  the  same.  And  each  judge  of  the 
Supreme  Court  shall  have  like  power  and  authority 
as  to  writs  of  habeas  corpus.  The  Supreme  Court 
shall  give  its  opinion  upon  important  questions, 
when  required  by  the  governor,  the  Senate  or  the 
House  of  Representatives,  and  all  such  opinions 
shall  be  published  in  connection  with  the  reported 
decisions  of  the  Supreme  Court.^ 

Three  Judges  —  A  Quorum. 
Sec.  4.   The  Supreme  Court  shall  consist  of  three 
judges,   a  majority   of  whom  shall   be  necessary  to 
form  a  quorum  or  pronounce  a  decision.' 

Terms  to  be  Held  at  the  Capital  of  the  State. 

Sec.  5.  At  least  two  terms  of  the  Supreme  Court 
shall  be  held  each  year  at  the  seat  of  government.^ 

In  each  year  there  shall  be  three  terms  of  the 
Supreme  Court ;  one  beginning  on  the  second  Mon- 
day in  September,  another  beginning  on  the  second 
Monday  in  January  and  another  beginning  on  the 
second  Monday  in  April.* 

When  no  Quorum    Present  —  Adjournment. 

Sec.  6.  If  there  shall  not  be  a  quorum  of  the  jus- 
tices of  the  Supreme  Court  present  on  the  first  day 
of  any  term,  the  court  shall  be  and  stand  adjourned 

1  Mills' Ann.  Stat.,  §  375.  ^ Mills'  Ann.  Stat.,  §  376. 

'■'Mills'  Ann.  Stat.,  §  377.  *  Mills'  Ann.  Stat.,  §  979. 


Terms  of  Supreme  Court.  13 

from  day  to  day,  until  a  quorum  shall  attend ;  and 
said  court  may,  there  being  a  quorum  present,  ad 
journ  to  any  day  specified,  as  may  be  deemed  advis- 
able.^ 

Special  Terms. 

Sec.  7.  Special  Terms  of  said  court  may  be  called, 
under  such  rules  and  regulations  as  may  hereafter 
be  adopted  by  said  court.^ 

Rule  of  Supreme  Court  in  relation  to  Special  Terms. 

In  pursuance  of  the  above  statute  the  Supreme 
Court  have  adopted  the  following  rule  : 

"  Special  Terms  of  this  court  may  be  held  at  any 
time,  upon  an  order  signed  by  two  of  the  justices  of 
this  court,  and  filed  in  the  office  of  the  clerk,  at  least 
fifteen  days  prior  to  the  day  appointed  for  the  as- 
sembling of  the  court.  The  clerk,  on  receipt  of  such 
order,  shall  forthwith  enter  the  same,  at  length,  in 
the  records  of  the  court,  and  give  notice  of  the  ap- 
pointment of  such  Special  Term,  and  the  day  ap- 
pointed therefor,  in  one  or  more  newspapers  published 
at  the  seat  of  government. 

"  No  appeal  or  «s-«V^y^a^5-  shall  be  returnable  to 
any  special  term."^ 

Supreme  Court  may  Make  Rules,  etc. 
Sec.  8.  The  Supreme  Court  may  from  time  to  time 
institute    rules   of   practice,  and  prescribe   forms   of 


1  Mills'  Ann.  Stat.,  §  969.  ^  Mills'  Ann.  Stat..  §  981. 

^  Rule  38  of  Supreme  Court. 


14  Practice  in  Courts  of  Review. 

process  to  be  used,  and  regulations  for  keeping  the 
records  and  proceedings  of  tlie  court,  not  inconsistent 
with  the  Constitution  and  laws  of  this  State.^ 

The  Supreme  Court     .     .     .     shall  have    .    .    . 
power  to   make   rules  and  regulations  for  governing 
their  practice  and  procedure  in  reference  to  all  matters 
not  expressly  provided  for  by  law." 

Open  Sessions — Oral  Arguments. 

Sec.  9.  "  The  court  shall  be  in  open  session  as  often 
as  shall  be  practicable,  during  each  of  its  terms,  to 
hear  and  determine  causes,  and  oral  arguments  shall 
be  heard  on  final  hearing  in  any  cause,  on  request  of 
any  party." ^ 

In  compliance  with  the  above  statute,  the  Supreme 
Court  has  promulgated  the  following  rule  : 

"  Any  cause  on  the  submission  docket  may  be 
moved  by  either  party  for  oral  argument.  Such 
motion  shall  be  delivered  to  the  clerk,  and  filed  with 
the  papers  in  the  cause.  Prior  to  reaching  such 
cause  for  decision,  the  court  will  fix  a  day  for  the 
argument,  due  notice  of  which  will  be  given  to  the 
parties  by  the  clerk."* 

To  this  rule  the  Court  of  Appeals  has  added  : 

"  And  the  court  will,  on  its  own  motion,  set  down 
any  submitted  case  for  oral  argument  at  any  desig- 
nated time,  and  the  clerk  will  notify  the  parties.^ 

1  Mills'  Ann.  Stat.,  §  97i-  ^  Mills'  Ann.  Stat.,  §  980. 

^  Code  of  1883,  §431;  Codeof  1887,  §407.    '•Rule  27  of  Supreme  Court. 

^  Rule  27  of  Court  of  Appeals. 


Supreme  Court  —  Opinions.  15 

Undisposed  of  Causes  Continued. 

Sec.  10.  All  suits,  matters  and  causes  undisposed 
of  at  any  term  of  the  Supreme  Court  shall  stand 
continued  to  the  next  succeeding  term.^ 

Opinions  and  Decisions  shall  be  in  Writing. 

Sec.  ii.  Theopinionsof  the  justices  of  the  Supreme 
Court,  in  any  matter  pending  before  it,  shall  be  given 
in  writing,  and  filed  with  the  other  papers  in  the  cause, 
and  when  the  justices  are  divided  in  opinion  in  any 
case,  the  final  order  shall  state  which  of  the  justices 
agree  to  it.^ 

All  decisions  given  upon  an  appeal,  upon  a  ques- 
tion of  law  only,  in  any  appellate  court  in  this  State, 
shall  be  given  in  writing,  with  the  reasons  therefor, 
and  filed  with  the  clerk  of  the  court.^ 

Supreme  Court  Justice  not  to  Act  as  Attorney. 

Sec.  12.  A  justice  of  the  Supreme  Court  shall  not 
practice  as  an  attorney  at  law,  or  solicitor  in  chancery, 
in  any  of  the  courts  of  the  State,  nor  give  advice 
touching  any  cause  pending  or  to  be  brought 
therein."^ 

A  judge  of  a  court  of  recora  shall  not  act  as  an  at- 
torney or  counsel  in  any  court  or  any  cause.^ 

'Mills'  Ann.  Stat.,  §  973.        3  Code  of  1887.  §423  ;  Code  of  1883,  §447. 
•*  Mills'  Ann.  Stat,  §  972.       *  Mills'  Ann.  Stat.,  §  974- 

5  Code  of  1887,  §  430. 


i6  Practice  in  Courts  of  Review. 

When  Judge  Disqualified  to  Sit  in  a  Cause. 

Sec.  13.  A  judge  shall  not  have  a  partner,  acting 
as  an  attorney  or  counsel,  in  any  court  in  his  judicial 
district  etc.,  nor  shall  any  Supreme  Court  judge 
make  out  the  papers  in  any  action  to  be  tried  before 
his  court.^ 

A  judge  shall  not  act  as  such  in  any  of  the  follow- 
ing cases  :  In  an  action  or  proceeding  to  which  he  is 
a  party,  or  in  which  he  is  interested  ;  when  he  is  re- 
lated to  either  party  by  consanguinity  or  affinity  in 
the  third  degree  ;  or  when  he  has  been  attorney  or 
counsel  for  either  party  in  the  action  or  proceeding, 
unless  by  consent  of  all  parties  to  the  action.^ 

When  Supreme  Court  Equally  Divided  in  Opinion. 

Sec.  14.  When  the  Supreme  Court  shall  be  equally 
divided  in  opinion,  on  hearing  an  appeal  or  writ  of 
error,  the  judgment  of  the  court  below  shall  stand 
affirmed.^ 

Limitation  to  Appellate  Jurisdiction. 

Sec.  15.  In  pursuance  of  the  authority  found  in 
section  2  of  article  VI  of  the  Constitution,  the  act  of 
1 89 1  provides  : 

"  No  writ  of  error  from  or  appeal  to  the  Supreme 
Court  shall  lie  to  review  the  final  judgment  of  any 
inferior  court,  unless  the  judgment,  or,   in  replevin, 

1  Code  of  1887,  §  431.  3  Code  of  1887,  §  403. 

*  Code  of  1887,  §  429;  Code  of  1883,  §  456. 


Court  of  Appeals.  17 

the  value  found,  exceeds  two  thousand  five  hundred 
dollars,  exclusive  of  costs ;  provided,  this  limitation 
shall  not  apply,  where  the  matter  in  controversy  re- 
lates to  a  franchise  or  freehold  ;  nor  where  the  con- 
struction of  a  provision  of  the  Constitution  of  the 
State  or  of  the  United  States  is  necessary  to  a  deter- 
mination of  a  case  ;  provided,  further,  that  the  fore- 
going limitation  shall  not  apply  to  writs  of  error  to 
County  Courts."^ 

The  above  exception  of  writs  of  error  to  County 
Courts  is  in  pursuance  of  the   constitutional   provis- 
ion regarding  writs  of  error  to  County  Courts,  in  sec 
tion  23,  article  VI  of  Constitution. 

COURT  OF  APPEALS. 
At  the  session  of  the  General  Assembly  of  1891, 
in  pursuance  of  the  constitutional  amendment  re- 
moving the  restrictions  which  heretofore  existed  on 
the  power  to  establish  other  courts  than  those  spe- 
cifically designated  in  the  Constitution,  the  Legisla- 
ture established  a  new  court  of  review,  and  desig- 
nated it  by  the  name  of  ''The  Court  of  Appeals'' 
The  following  are  the  principal  provisions  of  the  act, 
so  far  as  they  concern  the  procedure  therein. 

Court  of  Appeals  —  Jurisdiction  — Judges. 
Sec.  16.  There  is  hereby  established  a  court,  which 
shall  have  appellate  jurisdiction  only,  and  Avhich  shall 

'Act  in  relation  to  courts  of    review,  approved    April    6,   1891. 
L.  1891,  p.  118. 

3 


i8  Practice  in  Courts  of  Review. 

be  called  "  The  Court  of  Appeals^  Said  court  shall 
consist  of  three  judges,  who  shall  possess  the  quali- 
fications required  of  judges  of  the  Supreme  Court. ^ 

Jurisdiction  of  said    Court  as  to  Subject-Matter. 

Sec.  17.  The  said  court  shall  have  jurisdiction: 
First.  To  review  the  final  judgments  of  inferior 
courts  in  all  qav'A  cases,  and  in  all  criminal  cases  7wt 
capital.  Second.  It  shall  have  final  jurisdiction, 
subject  to  the  limitations  stated  in  subdivision  3  of 
this  section,  where  the  judgment,  or,  in  replevin  the 
value  found,  is  two  thousand  five  hundred  dollars  or 
less,  exclusive  of  costs.  Third.  It  shall  have  juris- 
diction, not  final,  in  cases  where  the  controversy  in- 
volves a  franchise  or  freehold,  or  where  the  con- 
struction of  a  provision  of  the  Constitution  of  the 
State  or  of  the  United  States  is  necessary  to  the  de- 
cision of  the  case.  Also  in  criminal  cases,  and  upon 
writs  of  error  to  County  Courts.  Writs  of  error 
from  or  appeals  to  the  Court  of  Appeals  shall  lie  to 
review  final  judgments,  within  the  same  time  and  in 
the  same  manner  as  is  now  or  may  hereafter  be  pro- 
vided by  law  for  such  reviews  by  the  Supreme  Court. 

A  Court  of  Record — ^Seal — May  Issue  All 
Necessary  Writs. 

Sec.  18.  The  Court  of  Appeals  may  issue  all  neces- 
sary writs  and  processes  in  causes  within  its  jurisdic- 

'  Section  2  of  Court  of  Appeals  Act.   L.  1891,  p.  118. 


Court  of  Appeals  —  Practice  in.  19 

tion,  in  the  same  manner  and  with  the  same  effect  as 
the  Supreme  Court.  It  shall  be  a  court  of  record 
and  have  a  seal. 

May  Adopt  Rules — Procedure  Similar  to 

THAT    OF    the    SuPREME    CoURT. 

Sec.  19.  The  Court  of  Appeals  shall  have  power 
to  adopt  rules,  regulating  the  procedure  therein,  in 
the  same  manner  and  with  the  like  effect  as  the 
Supreme  Court;  provided,  that  such  proceedings  shall 
be  so  far  similar  to  that  of  the  Supreme  Court  as  in 
the  judgment  of  the  judges  of  said  Court  of  Appeals 
may  be  practicable. 

Causes  Pending  in  Supreme  Court  may  be 
Transferred  to  Court  of  Appeals. 

Sec.  20.  Any  cause  now  pending  in  the  Supreme 
Court,  within  the  jurisdiction  of  the  Court  of  Appeals, 
may  by  order  of  the  Supreme  Court,  upon  notice  to  the 
parties  or  their  attorneys  of  record,  be  transferred  to 
the  Court  of  Appeals  for  determination,  unless  objec- 
tion to  such  transfer  be  interposed  within  thirty 
days  after  service  of  the  notice  aforesaid. 

Terms  of  Court. 

Sec.  21.  Terms  of  Court  shall  be  held  at  the  capital 
(of  the  State)  at  such  times  as  may  be  fixed  for  the 
terms  of  the  Supreme  Court.^ 

'  See  §  5,  ante. 


20  Practice  in  Courts  of  Review. 

Writs  of  Error  from  and  Appeals  to  Supreme 

Court. 

Sec.  22.  Writs  of  Error  from  and  appeals  to  the 
Supreme  Court  shall  lie  to  review  every  final  judg- 
ment of  the  Court  of  Appeals,  which  might  have  been 
taken  to  the  Supreme  Court  in  the  first  instance. 
Such  writs  of  error  shall  be  sued  out,  or  appeals  taken 
within  sixty  days  after  the  rendition  of  the  final  judg- 
ment, and  not  thereafter. 

Causes  Transferred  to  Supreme  Court  —  When. 

Sec,  23.  Any  case  in  the  Court  of  Appeals,  not 
within  the  final  jurisdiction  thereof,  shall  be  trans- 
ferred to  the  Supreme  Court,  upon  motion  of  a  de- 
fendant in  error  or  appellee,  made  within  such  time 
as  such  party  may  be,  by  law  or  rule  of  court,  required 
to  file  a  brief  in  the  case.  Such  case  shall  be  for 
hearing  in  the  Supreme  Court,  the  same  as  if  origi- 
nally taken  there,  and  all  bonds  and  other  obligations 
shall  remain  in  full  force  and  effect.  When  any  such 
case  is  taken  to  the  Supreme  Court,  all  pleadings, 
abstracts,  papers,  briefs,  and  other  things  pertaining 
to  the  case  shall  be  transferred  to  the  Supreme  Court, 
and  new  briefs  and  abstracts  shall  not  be  required, 
except  by  special  rule  in  particular  cases. 

Appeals  (from  the  Court  of  Appeals)  and  writs  of 
error  (from  the  Supreme  Court  to  the  Court  of 
Appeals)   shall  be  made  a  supersedeas  in  the   same 


Procedure  in  Court  of  Appeals.  21 

manner,  and  under  the  same  conditions  as  in   cases 
broupfht  from  other  courts.^ 

On  the  transfer  of  a  case  pending  in  the  Court  of 
Appeals  to  the  Supreme  Court,  in  compHance  with 
section  18,  all  unfiled  arguments  and  briefs  must  be 
filed  in  the  Supreme  Court,  and  the  time  of  filing  is 
the  same  as  that  for  cases  originally  taken  to  the  Su- 
preme Court. 

Code  Provisions  Regulating  the  Procedure  in  the  Su- 
preme Court  and  in  the  Court  of  Appeals. 

APPEALS. 

By  virtue  of  section  4  of  the  Court  of  Appeals  Act 
(§  19,  ante)  the  provisions  of  the  Code,  which  reg- 
ulate the  procedure  in  the  Supreme  Court,  apply  also 
to  the  procedure  on  appeal  and  writ  of  error  in  the 
Court  of  Appeals.  Hence  it  will  be  understood  that 
the  following  sections  of  the  Code  apply  both  to  the 
Supreme  Court  and  to  the  Court  of  Appeals,  so  far 
as  they  regulate  practice  and  procedure. 

Appeals  to  the  Supreme  Court  —  When  Allowed. 

Sec.  24.  Appeals  to  the  Supreme  Court  from  the 
district,  county  and  superior  courts  shall  be  allowed  in 
all  cases  where  the  judgment  or  decree  appealed 
from  is  final,  and  shall  amount,  exclusive  of  costs,  to 


'  Court  of  Appeals  Act  of  1891.     L.  1891,  p.  118. 


22  Practice  in  Courts  of  Review. 

the  sum  of  one  hundred  dollars,  or  relate  to  a  fran- 
chise or  freehold.^ 

The  foregoing  section,  as  to  the  amount  (one 
hundred  dollars),  only  is  repealed  by  the  Court  of  Ap- 
peals Act  of  1 89 1,  so  far  as  an  appeal  to  the  Supreme 
Court  is  involved,  and  now  no  appeal  can  be  taken 
to  the  Supreme  Court  from  any  inferior  court  of  rec- 
ord, unless  the  judgment  be  for  a  sum  exceeding 
**  Twenty-five  hundred  dollars,  exclusive  of  costs." 
It  is,  however,  apprehended  that  the  Code  section  is 
in  full  force  as  to  appeals  to  the  Court  of  Appeals, 
and  that  no  appeal  will  lie  to  that  court  unless  the 
judgment  amount  to  one  hundred  dollars  exclusive  of 
costs.  There  is,  however,  some  doubt  as  to  this.  The 
question  does  not  seem  to  have  been  as  yet  directly 
raised  in  the  Court  of  Appeals,  so  as  to  require 
a  positive  adjudication  on  this  point.  In  the  case  of 
Commissioners  v.  Mining  Co.  (i  Colo.  App.  126), 
incidentally  involving  this  question,  the  court  says  : 
"  If  this  case  had  been  appealed  to  this  court  subse- 
quent to  its  creation  by  statute,  it  may  be,  that  it 
would  be  our  duty  to  consider  it  on  its  merits."  This 
is  the  only  intimation  on  that  point  made  by  the 
court,  so  far  as  is  to  be  found  in  its  published  reports- 
The  Court  of  Appeals  has  entertained  a  number  of 
appeals,  where  the  amount  involved  was  less  than  one 
hundred  dollars. 


'  Code,  §  388.    Amended,  Laws  1889,  p.  77. 


Appeals  —  Security.  23 

Appeal  —  When  to  be  Prayed. 
Sec.  25.  Such  appeal  shall  be  prayed  for  within 
five  days  from  the  time  of  rendering  the  judgment 
or  decree.  The  prayer  for  appeal  may  be  made  to, 
and  the  order  therefor  may  be  made  by  the  judge  in 
vacation,  in  case  the  court  is  not  in  session  during 
the  whole  of  the  five  days  allowed  therefor.^ 

Conditions  on  which  Appeal  may  be  Granted. 

Sec.  26.  The  party  praying  for  such  appeal  shall, 
by  himself,  or  agent  or  attorney,  give  bond  with  suf- 
ficient surety,  to  be  approved  by  the  court  from 
which  the  appeal  is  taken  (or  the  clerk  thereof,  when 
the  order  granting  such  appeal  may  so  direct),  and 
file  in  the  office  of  the  clerk  of  the  court  from  which 
the  appeal  is  taken,  within  the  time  limited  by  the 
court  or  judge,  which  bond  shall  be  in  a  reasonable 
sum,  sufficient  to  cover  the  amount  of  the  judgment 
appealed  from  and  costs,  conditioned  for  the  payment 
of  the  judgment,  costs,  interest  and  damages,  in  case 
the  judgment  shall  be  affirmed,  and  also  for  the  due 
prosecution  of  the  appeal.~ 

Trial  Court  may  Dispense  with  or  Limit  Secu- 
rity —  When. 

Sec.  27.  The  trial  court  or  judge  may  dispense  with 
or,  limit,  in  his  discretion,  the  security  required  by  this 


'  Code,  §  388.     Amended,  Laws  1889,  p.  -]"]. 
2  Code,  §  388.    Laws  1889,  p.  tj. 


24  Practice  in  Courts  of  Review. 

act,  when  the  appellant  is  an  executor,  administrator, 
trustee,  or  other  person  acting  in  another's  right. 
When  a  municipal  corporation  is  the  appellant,  the 
court  or  judge  shall  direct  a  stay  of  execution  with- 
out filing  a  supersedeas  undertaking.^ 

Supreme    Court    may     Allow    Appeal    Bonds 

Amended. 

Sec.  28.  The  Supreme  Court  may,  in  its  discre- 
tion, allow  defective  appeal  bonds  to  be  amended.^ 

Record  —  When  to  be  Filed. 

Sec.  29.  The  appellant  shall  lodge  in  the  ofifice 
of  the  clerk  of  the  Supreme  Court  an  authenticated 
copy  of  the  record  of  the  judgment  or  decree  ap- 
pealed from,  by  or  before  the  third  day  of  the  next 
term  of  the  Supreme  Court.  Provided,  that  if  there 
be  not  thirty  days  between  the  time  of  making  the 
appeal  and  the  sitting  of  the  Supreme  Court,  then 
the  record  shall  be  lodged  as  aforesaid,  at  or  before 
the  third  day  of  the  next  succeeding  term  of  the 
Supreme  Court.  Otherwise  the  said  appeal  shall  be 
dismissed,  unless  the  Supreme  Court  shall  have 
granted  further  time  for  good  cause  shown.'^ 

Original  Bill  of   Exceptions   may  be  Taken  to 
THE  Court  of  Review. 

Sec.   30.  W^hen  a  bill  of  exceptions,  duly  signed, 
is  filed  in  the  court  from  which   the   appeal  is  taken, 
•  Code,  §  395.  ^  Code,  §  388.  ^  Code,  §  389. 


Bill  of  Exceptions.  25 

the  same  may,  by  the  appellant,  be  filed  in  the  orig- 
inal form  in  the  appellate  court.  And  when  such 
bill  of  exceptions  seeks  to  embrace  depositions,  the 
same  may  be  done  by  reference  without  copying  the 
same  in  full,  and  such  deposition  so  referred  to  shall 
thereby  become  a  part  of  the  bill  of  exceptions  and 
may  be  transferred  to  the  files  of  the  Supreme  Court. 
Deeds  and  other  papers  offered  in  evidence  may  be 
expressed  in  bills  of  exceptions,  by  stating  their 
purport  and  effect,  so  far  as  pertinent  to  the  decision 
in  the  appellate  court.  If  the  parties  below  fail  to 
agree  upon  the  essential  parts  of  such  papers,  they 
shall  be  expressed  in  substance  or  at  length,  as  the 
judge  signing  such  bill  of  exceptions  shall,  in  his 
discretion,  decide.-^ 

Any  one  of   the    Parties  (Defendant)  may 

Appeal. 

Sec.  31.  In  all  cases  where  a  judgment  or  decree 
shall  be  rendered  in  any  court,  in  any  case  whatever, 
either  in  law  or  in  chancery,  against  two  or  more 
persons,  either  one  of  said  persons  shall  be  permitted 
to  remove  said  suit,  by  appeal  or  writ  of  error,  and 
for  that  purpose  shall  be  permitted  to  use  the  names 
of  all  said  persons,  if  necessary. 

But  no  costs  shall  be  taxed  against  any  person 
who  shall  not  join  in  said  appeal  or  writ  of  error, 
and  all  such  cases  shall  be   determined  in  said    Su- 

>  Code,  §§  392-400. 

4 


26  Practice  in  Courts  of  Review. 

preme  Court  as  other  suits  are,  and  in  the  same 
manner  as  if  all  the  parties  had  joined  in  said  ap- 
peal or  writ  of  error.^ 

Judgment  on  Dismissal  of  Appeal, 

Sec.  32,  In  all  cases  of  appeals  to  the  Supreme 
Court,  where  the  appellant  shall  fail  to  prosecute 
his  appeal,  the  Supreme  Court  shall,  on  dismissal  of 
the  appeal,  enter  judgment  against  the  appellant  for 
not  less  than  five  nor  more  than  twenty  per  cent 
upon  the  amount  of  the  judgment,  for  damages  in 
consequence  of  the  delay  occasioned  by  the  appeal.' 

Sec.  2)3-  The  dismissal  of  an  appeal  may,  by  order 
of  the  court,  be  made,  without  prejudice  to  another 
appeal  or  writ  of  error ;  but,  unless  another  appeal 
or  supersedeas  be  taken  within  thirty  days  after  such 
dismissal,  the  dismissal  of  an  appeal  or  writ  of  error 
shall  operate  as  an  affirmance  of  the  judgment  of  the 
trial  court,  so  as  to  make  the  sureties  on  the  under- 
taking, given  by  the  appellant  or  plaintiff  in  error, 
liable  on  such  undertakinof.^ 

Duty  of  Clerk  of  Trial  Court  on  Dismissal  of 
Appeal  in  Court  of  Review. 

Sec.  34.  When  an  appeal  or  writ  of  error  shall  be 
dismissed  by  the  Supreme  Court,  or  the  judgment  of 
the  lower  court  affirmed,  it  shall  be  the  duty  of  the 
clerk  of  the  court  from  which  said  appeal  or  writ  of 

'  Code,  §  400.  -  Code,  §  391.  "^  Code,  §  397. 


Writ  of  Error.  27 

error  was  prosecuted,  upon  a  copy  of  the  order  of  the 
Supreme  Court  dismissing  said  appeal  or  writ  of 
error,  or  affirming  said  judgment,  being  filed  in  his  of- 
fice, to  issue  execution  on  said  judgment  and  proceed 
thereon  in  all  respects  as  though  no  appeal  or  writ 
of  error  had  been  prosecuted  from  said  judgment.^ 

Court  of  Review  may  Give  Final  Judgment  and 

Issue   Execution  —  Proceedings  Subsequent  to 

Final  Judgment  Reviewable. 

Sec.  35.  In  all  cases  of  appeals  and  writs  of  error, 
the  Supreme  Court  may  give  final  judgment  and  is- 
sue execution,  or  remand  the  case  to  the  lower  court 
that  execution  may  be  there  issued,  or  that  other 
proceedings  may  be  had  therein. 

Upon  appeal  from  or  error  to  a  final  judgment 
judicial  proceedings  in  the  trial  court,  subsequent  to 
such  judgment,  may  be  reviewed  in  the  Supreme 
Court  in  like  manner  and  with  like  effect  as  matters 
occurring  prior  thereto.^ 

writ  of  error. 
Writ  of  Error,  When  Lies  —  Amendable. 
Sec.  36.  Writs  of  error  shall  lie  from  the  Supreme 
Court  to  every  final  judgment  of  any  court  of  record 
of  this  State.  Such  writ  of  error  shall  be  amendable, 
and  all  writs  of  error,  wherein  there  shall  be  any 
variance  from  the  original  record,  or  any  other  de- 
fect, may  be  amended  and  made   agreeable  to   such 

»  Code,  §  399.  ^  Code.  §  398.    Amended,  1889. 


28  Practice  in  Courts  of  Review. 

record  by  the  respective  courts  where  such  writs  are 
or  shall  be  made  returnable.^ 

Time  to  Bring  Writ  —  Exceptions. 
Sec.  37.  a  writ  of  error  shall  not  be  brought  after 
the  expiration  of  three  years  from  the  rendition  of 
the  judgment  complained  of.  But  when  any  person 
thinking  himself  aggrieved  by  any  judgment  or- de- 
cree that  may  be  reviewed  in  the  Supreme  Court 
shall  be  an  infant,  non  compos  mentis^  or  imprisoned 
when  the  same  was  rendered,  the  time  of  such  dis- 
ability shall  be  excluded  from  the  said  three  years.^ 

Scire  Facias — Separate  Writs  to  Different 

Counties. 

Sec.  2)'^.   In  all  cases  in  which  a  writ  of  error  shall 

be  issued,  the  clerk  of  the  Supreme  Court  shall  also 

issue  a  scire  facias  or  summons  to  hear  errors  directed 

to  the  sheriff  or  other  officer  of  the  proper  county 

where  the  defendant  or  defendants  reside  or  may  be 

found,  commanding  him  to  summon  the  defendant  or 

defendants  in  error  to  appear  at  the  next  term  of  the 

Supreme  Court,  and  show  cause,  if  any   he  or  they 

have,  why  the  judgment  or  decree  mentioned  in  the 

writ  of  error  should  not  be  reversed.      If  there  are 

several  defendants  residing  in  different  counties,  the 

plaintiff  in  error  may  have  separate    writs    issued  to 

each  of  the  counties  where  such  defendants  reside.'^ 

'Code.  §  406.  2 Code,  §401. 

■'  Code,  §  404  ;  rules  2  and  3,  Supreme  Court. 


Scire  Facias.  29 

Service  of  Scire  Facias  by  Publication. 

Sec.  39.  If  the  plaintiff  in  error,  or  other  person  for 
him,  shall,  at  any  time,  file  in  the  office  of  the  clerk  of 
the  Supreme  Court  an  affidavit,  setting  forth  that  the 
defendant  has  gone  out  of  the  State,  so  that  process 
cannot  be  served  upon  him  ;  or  that  he  is  not  a  res- 
ident of  this  State ;  or  on  due  inquiry  cannot  be 
found  ;  or  is  concealed  within  this  State  ;  or  evades 
service  of  process  ;  or  that  process  cannot  be  served 
upon  him,  it  shall  be  the  duty  of  the  clerk  to  cause 
publication  of  notice  to  such  defendant  to  be  made 
in  some  newspaper  published  in  this  State,  setting 
forth  the  pendency  of  the  writ  of  error,  the  names 
♦  of  the  parties,  the  time  when  scire  facias  or  summons 
may  be  returnable,  which  notice  shall  be  published 
for  four  consecutive  weeks  ;  and  if  the  first  insertion 
of  such  notice  shall  not  be  at  least  sixty  days  before 
the  return  day  of  the  writ  of  error,  the  cause  shall  be 
continued  to  the  next  succeeding  term  of  the  Su- 
preme Court,  and  it  shall  be  the  duty  of  the  plaintiff 
in  error,  or  some  one  for  him,  to  send  postpaid  by 
mail  a  copy  of  such  notice  to  the  defendant  in  error, 
if  the  place  of  residence  of  him  shall  be  known  to,  or 
after  diligent  mquiry  can  be  ascertained  by,  the 
plaintiff  in  error;  and,  upon  filing  a  certificate  of  the 
publication  of  such  notice  made  by  the  publisher  of 
the  newspaper  in  which  the  same  shall  be  published, 
too-ether  with  an  affidavit  that  copies  of  such  notice 


30  Practice  in  Courts  of  Review, 

have  been  sent  to  the  defendant  in  error,  as  herein 
provided,  or  that  the  residence  of  the  defendant  is 
unknown  to,  or  cannot  after  diligent  inquiry  be  as- 
certained by,  the  plaintiff  in  error,  the  cause  shall 
proceed  as  if  the  defendant  had  been  personally 
served  with  process.^ 

Writ  of  Error  —  When  a  Supersedeas. 

Sec.  40,  No  writ  of  error  shall  operate  as  a  super- 
sedeas unless  the  Supreme  Court,  (or  if  application 
be  made  therefor  in  vacation)  some  justice  of  the 
Supreme  Court,  after  inspecting  a  copy  of  the  record 
in  the  cause,  shall  order  said  writ  to  be  made  a 
supersedeas^  nor  until  the  party  applying  for  such 
writ  shall  file  a  bond  in  the  office  of  the  clerk  of  the 
Supreme  Court,  with  the  conditions  required  in  cases 
of  appeals,  approved  by  the  court  or  justice,  allowing 
such  order  for  supersedeas^  or  if  such  order  shall  so 
direct,  then  by  the  clerk  of  some  court  of  record. 
The  clerk  issuing  such  writ  of  error  shall  indorse 
thereon  that  it  shall  be  a  supersedeas  and  operate  ac- 
cordingly ;  and  the  parties  in  writs  of  error  shall  be 
subject  to  the  same  judgment  and  mode  of  execution 
as  provided  in  cases  of  appeal.^ 

Motion  for  New  Trial  not  Necessary. 

Sec.  41.  A  motion  for  a  new  trial  shall  not  be  nec- 
essary to  enable  the  Supreme  Court  to  review  the 


'  Code,  §  405.  2  Code,  §  402. 


Original  Papers  — Judgment.  31 

judgment  and  orders  of  the  inferior  court,  when  the 
matters  alleged  as  errors  have  once  been  passed  upon 
by  such  court  against  exceptions  made  at  the  proper 
time.^ 

Original  Papers  When  to  be  Transmitted  to  the 

Supreme  Court. 

Sec.  42.  When  the  review  of  an  original  paper  in 
the  action  may  be  important  to  a  correct  decision  of 
the  appeal,  the  court  may  order  the  clerk  of  the  court 
below  to  transmit  the  same,  which  he  shall  do  in 
some  safe  mode,  to  the  clerk  of  the  Supreme  Court, 
who  shall  hold  the  same  subject  to  the  control  of  the 
court.^ 

When  Court  Equally  Divided  in  Opinion. 

Sec.  43.  When  the  Supreme  Court  shall  be  equally 
divided  in  opinion,  on  hearing  of  an  appeal  or  writ  of 
error,  the  judgment  of  the  court  below  shall  stand 
affirmed.^ 

Supreme  Court  may  Give  Judgment,  or  Remand. 

Sec.  44.  The  Supreme  Court,  in  case  of  a  partial 
reversal,  shall  give  such  judgment  as  the  inferior 
court  ought  to  have  given,  or  remand  the  cause  to 
the  inferior  court  for  further  proceedings  as  the  case 
may  require.^ 

'Code,  §  393.  3 Code,  §403- 

2  Code,  §  396.  '  Code,  §  390. 


32  Practice  in  Courts  of  Review. 


CHAPTER  II. 

The  Supreme  Court  and  Court  of  Appeals  —  Their 
Jurisdiction  and  Powers. 

THE  SUPREME  COURT. 
Sec.  45.  Jurisdiction  of  the  Supreme  Court. 

46.  Original  jurisdiction  of  Supreme  Court. 

47.  The  mention  of  the  cases  in  section  3  a  limitation  of  juris- 

diction. 

48.  Original  jurisdiction  to  disbar  an  attorney. 

49.  Practice  as  to  cases  within  original  jurisdiction. 

50.  Original  jurisdiction,  how  invoked. 

51.  Cases,  how  to  be  brought.     Relator. 

52.  Jurisdiction  of  judges  in  Habeas  corpus. 

53.  The  appellate  jurisdiction. 

THE  COURT  OF  APPEALS. 

54.  The  Court  of  Appeals. 

55.  Jurisdiction  of  the  Court  of  Appeals. 

56.  Transfer  of  causes  from  Supreme  Court  to  Court  of  Ap- 

peals. 

57.  Transfer  of  causes  from  Court  of  Appeals  to  the  Supreme 

Court. 

58.  Time  within  which  application  for  transfer  must  be  made. 

59.  Limit  of  appellate  jurisdiction  of  Supreme  Court. 

60.  Final  judgment  —  what  —  amount  as  test  of  jurisdiction. 

61.  What  is  a  judgment. 

62.  Classes  and  kinds  of  judgments. 

(>-:,.   Instances  of  "  final"  judgments,   reviewable  on   error   or 
appeal. 

64.  Franchise  — freehold  — construction  of  constitutional  pro- 

vision. 

65.  Jurisdiction  to  review  — how  called  into  action. 


Supreme  Court  —  Jurisdiction.  33 

Jurisdiction  of  the  Supreme  Court. 

Sec.  45.  The  Constitution  of  the  State  of  Colo- 
rado confers  upon  the  Supreme  Court  a  two-fold 
jurisdiction,  the  one  original  ;    the  other  appellate 

and  SUPERINTENDING. 

Original  Jurisdiction  of  the  Supreme  Court. 
Sec.  46.  The  Constitution  confers  upon  the  Su- 
preme Court  power  to  issue  the  writs  of  habeas 
corpits,  mandamus,  quo  warraiito,  certiorari^  injunc- 
tion and  other  remedial  writs,  with  authority  to  hear 
and  determine  the  same.^  It  is  held  by  the  Supreme 
Court  that  section  3  of  article  VI  of  the  Constitution 
confers  upon  the  Supreme  Court  a  jurisdiction  in 
the  cases  mentioned,  which  is  original  in  contra- 
distinction to  the  appellate  authority  previously  con- 
ferred ;  and  that  the  writs  mentioned  in  said  section 
are  not  thereby  given  to  be  used  in  aid  of,  or  in  con- 
nection with  its  appellate  authority,  but  for  the 
purpose  of  instituting  original  causes  or  proceed- 
ings.^ 

This  section  constitutes  the  Supreme  Court  a 
court  of  original  jurisdiction  in  the  class  of  cases 
mentioned  therein;  that  is,  gives  it  authority  to  take 
cognizance  of  those  causes  from  their  inception  ; 
permits  any  of  them  to  be  commenced  in  the  first 
instance  in  the  Supreme   Court,  and  empowers   the 


stitution,  art.  VI,  §  3.     -  Wheeler  v.  Irrigation  Co.,  9  Colo.  248. 
5 


34  Practice  in  Courts  of  Review. 

court  to  hear  and  finally  determine  the  issues  of  law 
or  fact,  which  are  properly  in  the  cause.  It  is  not 
necessary,  therefore,  that  the  cases  mentioned  in  the 
section  be  initiated  by  process  issuing  from  a  court 
of  record,  inferior  to  the  Supreme  Court,  be  there 
heard  and  determined  in  the  first  instance,  in  the 
usual  course  of  procedure,  and  be  then  removed  by 
appeal  or  writ  of  error  to  the  Supreme  Court. 

The  Mention  of  the  Cases  in  Section  3  is  a 
Limitation  on  the  Original  Jurisdiction  of  the 
Supreme  Court. 

Sec.  47.  Construing  a  similar  provision  of  the  Con- 
stitution of  their  State,  the  Supreme  Court  of 
Nebraska  say  : 

'*  The  designation  of  these  cases,  in  which  the  court 
has  original  jurisdiction,  is  a  direct  prohibition  of 
original  jurisdiction  in  other  cases.  The  maxim  : 
'  Expressio  unites  est  exchisio  alterius'  applies,  and 
excludes  original  jurisdiction  in  other  cases,  than 
those  mentioned."^ 

In  addition  to  the  original  jurisdiction  conferred 
by  the  above  provision  of  the  Constitution,  the  Leg- 
islature has  conferred  on  the  Supreme  Court  original 
jurisdiction  of  contests  of  the  election  of  County, 
District  and  Supreme  Court  judges,  they  being  the 

'  Bell  V.  Templin,  26  Neb.  249;  Wheeler  v.  Irrigation  Co.,  9  Colo. 
248. 


Disbarment  of  Attorneys.  35 

only  judges  of  courts  of  record  of  the  State,  who  are 
elected  by  the  people.  This  grant  of  original  juris- 
diction would  be  unconstitutional,  had  not  the  Con- 
stitution provided  in  another  portion  of  that  instru- 
ment, that  the  General  Assembly  might  designate 
the  courts  and  judges  by  whom  election  contests 
may  be  heard  and  determined.  It  is  held  by  the 
Supreme  Court  that  the  Legislature  has  no  power  to 
enlarge  the  jurisdiction  of  the  court,  in  violation  of 
a  prohibition  of  the  Constitution,  as  implied  in  section 
3,  article  VI  thereof.^ 

Original  Jurisdiction  to  Disbar  an  Attorney. 

Sec.  48.  The  Supreme  Court  has  also  original 
jurisdiction  of  proceedings  to  disbar  an  attorney,  who 
is  charged  with  such  malconduct,  as  on  proof  thereof 
will  render  him  in  the  judgment  of  the  court  an  unfit 
person  to  practice  the  profession  of  the  law.  It  de- 
rives this  jurisdiction  from  the  exclusive  authority 
given  it  to  admit  an  attorney  to  practice  in  all  the 
courts  of  the  State,  and  as  to  the  Supreme  Court,  its 
power  to  disbar  attorneys,  practicing  in  it,  from  prac- 
ticing in  the  Supreme  Court,  is  inherent  in  the  court 
at  common  law.  The  disbarment  from  practice  in 
other  courts  of  record  is  a  consequence  only  of  the 
disbarment  in  the  Supreme  Court,  by  operation  of 
the  statute. 


'Constitution,  art.  VII,  §  12;  Mills'  Ann.  Stat.,  §  1656. 


36  Practice  in  Courts  of  Review. 

Practice  of  the  Supreme  Court  as  to  Cases  within 
ITS  Original  Jurisdiction. 

Sec.  49.  Though  vested  by  the  Constitution  with  au- 
thority to  entertain  original  jurisdiction  in  the  class  of 
cases  mentioned,  the  practice  of  the  court  is  to  decline 
to  take  cognizance  of  such  cases,  in  the  exercise  of  its 
original  jurisdiction,  unless  the  cause  is  one  which 
involves  the  interests  of  the  public,  as  distinguished 
from  the  interest  of  the  party  who  desires  to  institute 
the  proceeding,  and  in  which  the  interest  of  the  public 
is  the  principal  reason  forbearing  the  questions  to  be 
determined  in  the  case,  or  in  cases,  where  some  pe- 
culiar exigency  requires  the  interposition  of  the 
Supreme  Court  in  the  first  instance.*  The  reasons 
of  this  practice  are  that  the  appellate  jurisdiction  to 
review  the  judgments  of  inferior  courts  of  record  by 
writ  of  error  or  appeal,  is  th.& pi^iinary  jurisdiction  of 
the  Supreme  Court,  and  its  original  jurisdiction  is  only 
secondary,  and  to  be  exercised  only  when  an  applica- 
tion for  the  writ  may  not  be  properly  made  to  some 
other  court,  which  is  empowered  to  issue  and  hear 
and  determine  the  proceeding  on  the  desired  writ.^ 

For  this  reason  the  Supreme  Court  has  adopted 
the  following  rule,  as  to  the  manner  in  which  its  origi- 
nal jurisdiction  is  to  be  invoked  : 

"  Where  an  application  is  made  to  the  court  for  a 
writ,  to  be  issued  in  the  exercise  of  its  original  juris- 

'  In  re  Rogers,  12  Colo.  278.     2  People  v.  Richmond,  16  Colo.  274. 


Original  JurisdictioiN.  37 

diction,  and  for  which  an  appHcation  might  lawfully 
have  been  made  to  some  other  court  in  the  first  in- 
stance, the  petition  shall  '"'  *  ^  also  set  forth  the 
circumstances  which,  in  the  opinion  of  the  applicant, 
render  it  necessary  or  proper  that  the  writ  should 
issue  originally  from  this  court,"  etc. 

The  sufficiency  of  the  circumstances,  which  are  set 
forth  in  the  application  as  reasons  why  the  Supreme 
Court  shall  issue  the  writ  in  the  first  instance,  and 
take  original  cognizance  of  the  case,  is  determined 
by  the  court,  in  its  refusal  or  allowance  of  the  appli- 
cation for  the  writ.^ 

In  Wheeler  v.  Irrigation  Co.,  supya,  the  court 
distinctly  enunciates  the  rules  that  guide  it  in  taking 
cognizance  of  causes,  of  which  original  jurisdiction 
is  given  it  by  the  Constitution  : 

"We  are  clearly  of  the  opinion  that  original  juris- 
diction should  be  entertained  only  in  cases  involving 
c\}x&sX\ons  publtci  Jit-ris,  and  that  the  writs  from  this 
court  should  be  put  only  to  prerogative  uses.  As  a 
rule,  the  Supreme  Court  will  exercise  its  original 
jurisdiction  in  cases  wherein  the  rights  of  the  litigants 
only  are  involved,  only  when  there  exists  some  un- 
usual and  extraordinary  reason  for  its  taking  cog- 
nizance of  the  case."^ 

It  follows,  therefore,  from  the  rule  of  the  court 
above  cited,  that  no  one  of  the  writs  of  which  original 


'  Rule  47  of  Supreme  Court.       •  Johnson  v.  Young,  13  Colo.  382. 


38  Practice  in  Courts  of  Review. 

jurisdiction  is  granted  to  the  court  by  the  Constitu- 
tion, will  be  issued  as  of  course,  or  in  any  case,  in 
which  a  court  of  record,  inferior  to  the  Supreme 
Court,  has  authority  to  issue  such  writ  in  the  first  in- 
stance, and  hear  and  determine  the  same,  unless  the 
court  is  satisfied,  from  the  circumstances  stated  in  the 
application,  that  the  interests  of  the  public,  as  distin- 
guished from  the  interest  of  the  applicant,  will  be 
best  promoted  by  the  court  taking  original  cognizance 
of  the  cause.  This  rule  is  rigidly  adhered  to  by  the 
court,  even  in  cases  of  State  officers,  and  in  cases  in- 
volving the  duties  of  State  officers,  such  as  mandamus 
to  the  State  auditor,  treasurer,  etc. 

Original  Jurisdiction,  how  Invoked. 

Sec.  50.  Practitioners  will  note,  that  no  one  of  the 
writs,  of  which  the  Supreme  Court  has  jurisdiction, 
may  be  issued  by  the  justices  in  their  individual 
capacity,  or  except  by  the  court,  sitting  as  a  "  court." 
So  it  has  been  ruled  by  the  Supreme  Court  of  Cali- 
fornia, in  the  earlier  volumes  of  its  reports,  that  the 
clerk  has  no  authority  to  issue  any  one  of  the  oricrinal 
writs,  of  which  the  Supreme  Court  has  jurisdiction 
by  the  Constitution,  until  such  writ  has  been  allowed 
by  the  court,  sitting  as  a  "  court."  In  every  such 
case  a  specific  order  must  be  made  by  the  court  in 
the  particular  cause,  directing  the  clerk  to  issue  it. 
The  only  exception  to  this  rule  is  the  case  of  a  writ 
of  habeas  corpus  which  may  be  issued  by  an  individual 


Procedure  in  Courts  of  Review.  39 

justice  of  the  Supreme  Court,  under  the  amendment 
of  the  Constitution,  giving  to  the  justices,  as  distinct 
from  the  court,  the  power  to  issue  such  writ.  It  is 
then  issued  by  the  justice  and  not  under  the  hand  of 
the  clerk  and  seal  of  the  court. 

The  exercise  of  its  original  jurisdiction  is  invoked 
by  a  petition,  which  should  set  out  the  grounds  on 
which  petitioner  bases  his  application  for  the  specific 
writ,  addressed  to  the  court.  It  should  be  verified  by 
the  petitioner,  and  is  then  presented  to  the  court  at 
a  public  sitting  thereof.  The  petition  for  the  specific 
writ  should  contain  a  concise,  but  full  and  complete 
statement  of  each  and  every  fact,  upon  which  the 
applicant  bases  his  application,  as  showing  prima 
facie  his  right  to  have  the  Supreme  Court  issue  the 
particular  writ  in  the  first  instance.  For  though  he 
may  have  the  right  to  have  the  particular  writ  issued 
by  some  court  of  competent  jurisdiction,  such  right 
will  not  entitle  him  to  have  the  particular  writ  issued 
by  the  Supreme  Court  in  the  first  instance,  and  he 
must  in  his  petition  set  out  fully  the  special  circum- 
stances that  warrant  the  application  to  the  Supreme 
Court. 

As  each  and  every  one  of  the  writs,  of  which  the 
Supreme  Court  has  original  jurisdiction,  may  in  all 
ordinary  cases  be  granted  by  a  District  Court  of  the 
proper  county,  the  petition  must  strictly  comply  with 
the  requirements  of  Rule  47  of  the  Supreme  Court, 
unless  it  appear   on  its   face   that   the  writ   must  be 


40  Practice  in  Courts  of  Review. 

addressed  to  a  District  Court,  or  to  a  judge  of  a  Dis- 
trict Court.  In  such  case  the  Supreme  Court  alone 
will  have  jurisdiction  to  grant  the  particular  writ,  as 
the  Court  of  Appeals  has  no  power  to  issue  any- 
original  writ,  except  the  writ  of  error. 

If  the  court  be  not  publicly  sitting,  the  petition 
may  be  placed  in  the  hands  of  one  of  the  justices,  for 
consideration  by  the  court,  which  is  usually  had  by 
the  justices  in  the  recess  of  the  court,  but  the  order, 
by  which  the  court  announces  its  allowance  or  dis- 
allowance of  the  prayer  of  the  petition,  is  made  at  a 
public  sitting  of  the  court. 

Original  Cases,  How  to  be  Brought — Relator. 

Sec.  51.  In  Wheeler  v.  Irrigation  Co  the  Supreme 
Court  thus  indicates  the  proper  procedure,  in  cases 
in  which  the  exercise  of  its  original  jurisdiction  is 
invoked  : 

"  Cases,  of  which  this  court  should  take  original 
jurisdiction,  involving,  as  in  general  they  must,  ques- 
tions of  public  right,  should  be  brought  in  the  name 
of  'the  people.'  The  State  or  the  public  being  the 
main  party  in  interest,  although  individual  advantage 
may  be  gained,  the  person  instituting  the  proceeding 
should  appear  as  'relator.'  It  is  also  eminently  fit- 
ting, that  such  causes  be  inaugurated  before  this  court 
by  the  attorney-general,  or  with  his  consent,  or  at 
least  that  the  refusal  of  that  officer  to  act  be  shown. 
We  do  not  declare  such  consent  or  refusal  to  be  abso- 


Procedure  in  Courts  of  Review.  41 

lutely  necessary.  If  the  main  object  of  the  proceed- 
ing is  to  vindicate  a  public  right  to  protect  the  in- 
terest of  the  State  in  its  sovereign  character,  to 
prevent  the  illegal  use  of  a  public  franchise  as  against 
the  people  generally,  or  a  considerable  portion 
thereof,  or  if  it  be  to  subserve  the  public  interest  in 
any  of  the  other  matters  hereinbefore  mentioned,  a 
citizen  could  probably  institute  the  proceeding  in  the 
name  of  the  people,  without  consulting  the  attorney- 
general." 

While  the  above  mode  of  procedure  is  indicated  as 
the  correct  one,  it  does  not  follow  that  the  petition 
must  be  entitled  in  the  name  of  the  people.  The 
common-law  rule,  which  controls  the  court  in  this 
class  of  cases,  forbids  the  petition  being  entitled  in 
any  case,  since  no  cause  is  pending  in  any  court,  until 
the  writ  is  allowed  by  the  court.  Upon  the  allowance 
of  the  petition,  the  cause  then  becomes  a  cause  in 
the  Supreme  Court,  and  thereafter  should  be  entitled. 

"  The  people,  on  the  relation  of ,  relator," 

in  all  proceedings  and  papers  filed  therein  by  either 
party.  Upon  the  allowance  of  the  writ  by  the  court, 
application  ought  to  be  made  to  the  attorney-gen- 
eral for  his  consent  to  the  use  of  his  name  in  the 
prosecution  of  the  action.  Ordinarily  the  attorney- 
general  will  permit  his  name  to  be  used  by  reputa- 
ble counsel,  employed  by  the  parties  in  interest, 
though  he  take  no  active  part  in  the  prosecution 
thereof.     It  will  be  advisable  to  make  this  application 


42  Practice  in  Courts  of  Review. 

to  him  in  writing,  and  request  a  written  consent  or 
refusal.  If  he  consent,  his  appearance  for  the  relator 
will  then  be  entered  in  the  Supreme  Court,  and 
thereafter  his  name  will  be  signed,  with  that  of  the 
other  counsel,  to  all  papers  and  pleadings  on  behalf 
of  the  relator.  If  he  decline  to  permit  his  name  to 
be  used,  of  which  the  written  refusal  will  be  evidence, 
a  motion  should  be  made  to  the  court  for  leave  to 
prosecute,  without  the  use  of  the  name  of  the 
attorney-general.  It  is  held  by  the  Supreme  Court 
of  Wisconsin,  under  a  similar  provision  of  law  to 
that  of  Colorado,  that  the  signature  of  the  attorney- 
general,  to  pleadings  filed  in  original  cases  in  the 
Supreme  Court,  is  only  a  matter  of  form,  and  not 
indispensable,  and  that  that  officer  has  a  discretion  in 
reference  to  instituting  or  refusing  to  institute  origi- 
nal suits  in  the  Supreme  Court,  which  the  court  can- 
not control,  but  which  does  not  deprive  the  court  of 
the  rio-ht  to  authorize  them  to  be  instituted  without 
his  consent. 

A  very  appropriate  mode  of  bringing  before  the 
court  the  consent  or  refusal  of  the  attorney-general 
in  such  cases,  is  that  adopted  by  the  Supreme  Court 
of  Wisconsin,  in  a  recent  case.  In  that  instance  the 
court  made  an  order  on  the  application  of  the  peti- 
tioner, that  the  attorney-general  institute  the  pro- 
ceedincr  in  the  Supreme  Court  within  a  specified  time, 
or  make  known  to  the  court  his  reason  for  refusmg 
to  do  so.   If,  on  the  expiration  of  the  specified  period 


Attorney  General's  Consent.  43 

of  time,  the  attorney-general  files  his  written 
grounds  for  refusing  to  institute  the  proceeding,  and 
the  court,  on  due  consideration  of  such  reasons,  is  of 
opinion  that  the  public  interest  will  not  be  subserved 
by  the  prosecution  of  that  proceeding  in  the  Supreme 
Court,  the  petitioner  will  be  remitted  to  some  other 
court  of  competent  jurisdiction.  But  if  the  reasons 
alleged  by  the  attorney-general  are  not  satisfactory, 
or  the  court  is  of  opinion  that  the  determination  of 
the  questions  involved  will  be  beneficial  to  the  public, 
as  the  court  will  have  passed  already  upon  the  suffi- 
ciency/r/;;/^;/"^^/^  of  the  facts  stated  in  the  petition, 
as  grounds  for  allowing  the  writ  to  issue,  it  will  usu- 
ally permit  the  cause  to  be  prosecuted  by  the  relator. 

This  motion  should  be  made  before  the  writ  is 
issued,  especially  in  cases  where  an  alternative  writ 
or  rule  to  show  cause  issues  in  the  first  instance. 

These  and  other  preliminary  matters,  if  any,  hav- 
ing been  determined  by  the  court,  in  most  cases  a 
rule  to  show  cause  why  the  writ  asked  for  by  peti- 
tioner shall  not  issue  is  ordered  to  be  served  on  all 
persons  interested  adversely  to  the  petitioner,  and  a 
day  certain  for  the  return  of  the  rule  is  appointed 
therein.  On  the  appointed  day  for  the  return  of  the 
rule,  if  parties  interested  adversely  appear  to  resist 
the  granting  of  the  petition,  the  pleadings  proper  in 
the  case  are  then  filled  in  due  order,  and  time  is  given 
each  party  to  file  briefs  and  arguments  in  support  of 
his  views.     The  procedure  in  quo  warranto,  andprob- 


44  Practice  in  Courts  of  Review. 

ably  in  the  case  of  the  other  writs  mentioned  in  the 
Constitution,  is  according  to  the  common-law  proced- 
ure, as  it  existed  at  the  time  of  the  adoption  of  the 
Constitution,  and  not  according  to  the  provisions  of 
the  Code  of  Civil  Procedure.  The  writs  and  the 
procedure  under  them  was  well  known  at  the  time  of 
the  Constitution,  and  the  framers  of  that  instrument 
are  held  to  have  specified  the  particular  writs  as  they 
then  existed,  and  were  in  use  in  the  common-law 
courts.^ 

If  the  court  be  of  opinion,  on  hearing  of  the  pe- 
tition, that  the  relief  which  the  petitioner  seeks  by 
the  proceeding  can  be  obtained  as  effectually  in  a 
District  or  other  court  which  has  jurisdiction  to  hear 
and  determine  the  cause  in  the  first  instance,  and  no 
special  reason  appears  why  the  Supreme  Court  should 
take  original  cognizance  of  the  cause,  it  will  deny  the 
petition,  and  if  a  rule  to  show  cause  has  been  issued, 
the  rule  will  be  discharged,  and  the  petitioner  will  be 
advised  to  present  his  petition  to  such  District  or 
other  court.' 

Jurisdiction  of  Judges  in  Habeas  Corpus. 

Sec.  52.  Prior  to  the  constitutional  amendment  of 
1886,  by  which  each  judge  of  the  Supreme  Court,  is 
given  like  authority  with  the  Supreme  Court  in 
cases  of  habeas  corpus,  it  was  held  that  the  original 

'The  People  V.  Curley,  5  Colo.  417;  People  v.  Reed,  1 1  Colo.  140. 
"^  In  re  Rogers,  14  Colo.  18. 


Habeas  Corpus.  45 

jurisdiction  to  hear  and  determine  cases  of  habeas 
corpus  was  vested  in  the  court  only,  and  could  not  be 
exercised  by  the  individual  judges  of  that  court, 
though  authority  to  do  so  was  given  them  by  the 
statute.^ 

The  procedure  on  habeas  corpus  either  before  the 
Supreme  Court  or  before  one  of  the  judges,  under 
the  amendment  to  the  Constitution,  which  gives  the 
justices  of  the  Supreme  Court  jurisdiction  to  hear 
and  determine  a  writ  of  habeas  corpus,  is  governed  by 
the  provisions  of  chapter  60  of  Mills'  Ann.  Statutes, 
entitled  ''Habeas  Corpus.''  But  as  a  general  rule,  the 
Supreme  Court  will  not  entertain  an  application  for 
a  writ  of  heabas  corpus,  if  it  appear  that  the  applica- 
tion can  be  made  to  a  District  Court  or  to  a  judge  of 
the  District  Court,  and  can  properly  be  heard  by  him. 
Hence  it  is  only  when  the  imprisonment,  claimed  to 
be  illegal,  is  upon  a  conviction  or  judgment  of  a  Dis- 
trict Court,  which  it  is  alleged  is  for  any  reason  abso- 
lutely void,  either  because  the  trial  court  exceeded  its 
jurisdiction,  or  where  the  law,  under  which  the  judg- 
ment rendered,  is  alleged  to  be  unconstitutional,  that 
the  Supreme  Court  will  hear  the  application.  If  the 
judgment  is  merely  voidable,  it  will  remit  the  appli- 
cant to  his  writ  of  error. 

This  same  rule  applies  where  the  discharge  is 
claimed  by  reason  of  a  violation  of  the  Two  Term  Act 
included  in  the  Habeas  Corpus  Act,  which  entitles  a 

'  lit  re  Garvey,  7  Colo.   502. 


46  Practice  in  Courts  of  Review. 

prisoner  to  his  discharge  from  imprisonment,  if  not 
brought  to  trial  before  the  third  term  of  the  court 
having  jurisdiction.^ 

The  decision  In  re  Garvey,  7  Colo.  507,  as  to  power 
of  justices  of  Supreme  Court  in  habeas  corpus,  when 
sitting  as  a  justice,  and  not  as  a  court,  is  no  longer  law. 

There  does  not  appear  to  be  any  law,  in  force  in 
Colorado,  which  gives  to  the  Court  of  Appeals,  or  to 
the  justices  of  that  court,  any  jurisdiction  to  issue  or 
hear  and  determine  a  writ  of  habeas  corpus.  Its 
power  being  simply  revisory,  it  has  no  original  juris- 
diction whatever,  and  being  a  statutory  court,  can 
take  no  jurisdiction  by  implication,  or  unless  from 
some  express  statute  in  relation  to  itself.  It  is  held 
by  the  Supreme  Court  that,  while  the  writ  of  habeas 
corpus  is  a  common-law  writ,  and  does  not  exist 
merely  in  virtue  of  the  statute  of  Charles  II,  yet 
it  cannot  be  issued  by  any  court  or  judge  unless 
expressly  authorized  to  do  so  by  statute  of  this  State. 
See  In  re  Garvey,  supra.  Hence  the  Court  of  Ap- 
peals, not  being  authorized  by  statute  to  issue  the 
writ,  it  can  only  act  in  a  habeas  corpus  case  by  way 
of  review,  on  writ  of  error. 

The  Appellate  Jurisdiction. 
Sec.  53.   Except  in  the  cases,  where  a  limited  origi- 
nal jurisdiction  is  expressly  conferred,  the  primary 
and  principal  powers,  conferred  upon  the  Supreme 

'Mills'  Ann.  Stats.  2108-21 13. 


Appellate  Jurisdiction.  47 

Court  by  the  Constitution,  make  it  essentially  a  court 
of  review  only,  in  exercising  its  appellate  jurisdiction, 
as  conferred  by  section  2  of  article  VI.  In  all  mat- 
ters not  within  its  original  jurisdiction,  its  powers  are 
exclusively  appellate.  But  it  is  held  that  it  is  within 
the  power  of  the  Legislature  to  lodge  in  some  other 
court  jurisdiction  to  review  and  determiney^VW/)',  that 
is,  not  subject  to  review  by  appeal  or  writ  of  error  to 
the  Supreme  Court,  an  enumerated  class  of  cases  ; 
the  Constitution  specifying  the  kind,  but  not  the 
qiLantuin,  of  its  jurisdiction  as  a  court  of  review. 

The  Supreme  Court  is  the  court  of  last  resort  in 
the  State;  from  its  judgments  there  is  no  appeal  to 
any  other  State  tribunal,  and  its  decisions  are  binding 
upon  the  rest  of  the  State  courts  and  judges,  as  final 
adjudications  of  what  is  the  law  of  the  State.  Every 
other  court,  established  by  statute,  whatever  be  the 
powers  conferred  upon  it,  is  necessarily  subordinate 
to  the  Supreme  Court,  subject  to  its  superintending 
control,  and  must  be  guided  and  governed  by  the  de- 
cisions of  the  Supreme  Court,  determined  in  the  exer- 
cise of  its  appellate  power.  Hence  it  has  the  inherent 
power  to  review,  on  appeal  or  writ  of  error,  the  pro- 
ceedings of  all  courts  of  record  of  the  State,  and 
their  judgments,  rendered  in  actions  and  proceedings 
had  therein,  subject  to  the  limitations  imposed  by  the 
Legislature,  as  to  the  qttaiituni  or  money  limit  of  the 
judgment  or  decree,  which  it  may  review.' 

'  People  V.  Richmond,  i6  Colo.  274. 


48  Practice  in  Courts  of  Review. 

The  Court  of  Appeals. 

Sec.  54.  At  the  session  of  the  Legislature,  which 
was  held  in  1891,  there  was  created  an  intermediate 
court  of  review,  subordinate  to  the  Supreme  Court, 
and  having  final  jurisdiction,  as  specified  in  the  act,  in 
an  enumerated  class  of  cases,  which  is  denominated  : 
"The  Court  of  Appeals."  Immediately  upon  its 
organization  its  constitutionality  was  attacked  by  a 
quo  zvarranto  proceeding  in  the  Supreme  Court,  and 
after  learned  and  exhaustive  argument  by  some  of 
ablest  jurists  of  the  State,  it  was  held  by  the  Supreme 
Court,  that  it  was  within  the  power  of  the  General 
Assembly  to  establish  such  court,  under  the  amend- 
ment to  the  Constitution  ;  provided,  its  judgments  be 
made  subject  to  review  by  the  Supreme  Court,  and 
that  the  General  Assembly  might  make  an  enu- 
merated class  of  causes,  decided  by  such  court,  not 
subject  to  review  by  the  Supreme  Court.  In  the 
opinion  it  is  further  held,  that  the  General  Assembly 
may  define  the  limits  of  the  jurisdiction  of  the  Su- 
preme Court,  by  a  specificatio7i  of  a  money  limit,  but 
can  not  with  draw  from  its  jurisdiction  any  kmd  of 
cases. 

This  decision  sets  at  rest  all  doubts  as  to  the  con- 
stitutionality of  the  court,  and  the  legality  of  its  or- 
ganization.^ 

In  consequence  of  this  act,  there  are  at  this  time 
two  appellate  courts,  both  distinctively  courts  of  7'e- 

' People  V.  Richmond,  16  Colo.  274. 


Jurisdiction  of  Court  of  Appeals.  49 

view,  in  existence  in  the  state  :  The  Court  of  Appeals 
and  the  Supreme  Court.  Except  in  criminal  cases, 
which  are  capital,  the  jurisdiction  of  the  two  courts 
is  concurrent  in  all  cases,  but  that  of  the  Court  of 
Appeals  is  subordinate  to  the  Supreme  Court,  and  its 
judgments  are  subject  to  review  by  it,  in  all  cases  ex- 
cept certain  enumerated  classes. 

Jurisdiction  of  the  Court  of  Appeals. 

Sec.  55.  By  section  4  of  the  Court  of  Appeals  Act 
the  jurisdiction  of  the  court  is  defined  as  follows: 
The  said  court  shall  have  jurisdiction: 

First — To  review  the  final  judgments  of  inferior 
courts  of  record  in  «// civil  cases,  and  in  all  criminal 
cases,  not  capital. 

Second — It  shall  \i2iw^  final  jurisdiction,  subject  to 
the  limitations  stated  in  subdivision  3  of  this  section, 
where  the  judgment  or  in  replevin  the  value  found, 
is  two  thousand  five  hundred  dollars  or  less,  exclusive 
of  costs. 

Third — It  shall  have  jurisdiction,  not  final^  in 
cases  where  the  controversy  involves  a  franchise  or 
freehold,  or  where  a  construction  of  a  provision  of 
the  Constitution  of  the  State,  or  of  the  United  States, 
is  necessary  to  the  decision  of  the  case  ;  also\v\  crimi- 
nal cases,  and  on  writs  of  error  to  County  Courts. 

Hence  it  appears  that  a  judgment  of  the  Court  of 
Appeals  is   not  subject   to   review   by   the  Supreme 
Court,  in  any  civil  case,  where  the  judgment  or  decree 
7 


50  Practice  in  Courts  of  Review. 

rendered  by  it  is  for  a  sum  not  exceeding  twenty-five 
hundred  dollars,  exclusive  of  the  costs  of  the  action. 
Under  the  provisions  of  the  act,  no  appeal  or  writ  of 
error  will  lie  to  the  Supreme  Court,  if  the  amount  of 
the  judgment  be  twenty-five  hundred  dollars  or  less, 
but  the  appeal  from  the  judgment,  or  the  writ  of 
error,  must  be  from  the  Court  of  Appeals. 

In  ^//criminal  cases,  however,  a  writ  of  error  will 
lie  from  the  Supreme  Court  to  the  final  judgment 
of  the  Court  of  Appeals  therein. 

Hence  the  party  appealing  or  seeking  a  writ  of 
error  has  his  election  as  to  a  choice  of  the  court,  to 
which  he  may  appeal,  in  all  cases  of  a  civil  nature, 
where  the  judgment  is  over  twenty-five  hundred  dol- 
lars, or  in  a  non-capital  criminal  case.  He  may  go 
in  the  first  instance  to  the  Court  of  Appeals,  or 
to  the  Supreme  Court,  if  he  so  elect.  If  he  go 
to  the  Court  of  Appeals  in  the  first  instance  and  be 
dissatisfied  with  its  judgment,  he  may  then  go 
to  the  Supreme  Court.  It  seems  also  that  capital 
cases,  in  which  a  judgment  or  death  sentence  has 
been  pronounced  by  the  trial  court,  must  be  taken 
directly  by  a  writ  of  error  to  the  Supreme  Court, 
and  that  the  Court  of  Appeals  has  no  jurisdiction 
thereof. 

It  will  be  noted  that  the  Court  of  Appeals  has  no 
jurisdiction  to  issue  any  of  the  original  writs,  of  which 
the  Supreme  Court  has  original  jurisdiction,  except 
in  aid  of  its  jurisdiction  as  an  appellate  court,  and 


Transfer  of  Causes.  51 

when  necessary  to  the  exercise  of  its  powers  as  a 
court  of  review.  It  is  exclusively  a  court  of  review.  It 
can  issue  no  writs,  unless  it  becomes  necessary  to  do 
so,  as  a  means  of  exercising  the  powers  pertinent  to 
a  court  of  review,  but,  by  section  7  of  the  act,  when 
necessary  to  issue  such  writs  and  process  in  aid  of  its 
appellate  jurisdiction,  it  can  do  so  in  the  same  man- 
ner and  with  the  same  effect  as  the  Supreme  Court 
issues  like  writs. 

Transfer  of  Causes  from  Supreme  Court  to  the 

Court  of  Appeals. 

Sec.  56.  Section  5  of  the  Court  of  Appeals  Act 
provides  for  the  transfer  of  causes  which  were,  at  the 
time  of  its  passage,  pending  in  the  Supreme  Court, 
by  appeal  or  writ  of  error,  to  the  Court  of  Appeals, 
when  such  cause  might  have  been  taken  originally  to 
the  Court  of  Appeals  instead  of  the  Supreme  Court. 
As  the  Court  of  Appeals  has  jifrisdiction  to  take 
cognizance  of  every  kind  of  civil  case  and  all  crim- 
inal cases  not  capital,  this  section  seems  to  permit  a 
transfer  of  .any  case,  civil  or  criminal,  not  pending  in 
the  Supreme  Court  in  the  exercise  of  its  original 
jurisdiction,  to  the  Court  of  Appeals,  except  cases 
wherein  a  death  sentence  has  been  pronounced  by 
the  trial  court. 

The  act  provides  that  the  transfer  shall  be  made 
on  notice  to  the  parties  or  their  attorneys  of  record, 
but  does  not  specify  on  whose  motion  the  transfer 


52  Practice  in  Courts  of  Review. 

shall   be  ordered.     It  seems  that  such   transfer  may 
be  made  on  the   court's   own  motion,  or  on  applica- 
tion of  either  of  the  parties,  and  it  becomes  effective, 
unless  an  objection  to   the  transfer  is  made  within 
thirty  days  after  service  of  the  notice  of  the  motion 
by  one  of  the  parties.     The   notice  of  the   motion 
should  be  given  in  writing,  if  on  the  court's  motion, 
to  both  parties  to  the  appeal  or  writ  of   error;   if   on 
motion  of  one  of   the  parties   to   the  adverse  party. 
The  time  for  hearing  the  motion  is  to  be  stated  in 
the  notice,  and  at  a  convenient  time   thereafter  the 
Supreme  Court  will  hear  the  objection,  if  any  be  in- 
terposed, to  the  transfer.     The  act  does  not  provide 
that  the  Supreme  Court  may  hear  and  pass  upon  the 
sufficiency  of  the  objection  made,  and  if  it  deem  the 
objection  insufficient,  direct  the  transfer.     It  seems 
that  the  fact  of  any  objection,  no  matter  what  it  may 
be,  will  preclude  the  Supreme  Court  from  making  an 
order  for  the  transfer,  and  that  such  transfer  can  be 
made  only  when  all  parties  consent  to  it,  either  ex- 
pressly or  by  failure  to  object  thereto,  within  thirty 
days  after  a  notice  of   intent  to  transfer  the  cause  to 
the  Court  of  Appeals. 

This  provision  is  made  expressly  applicable  only  to 
causes  pending  in  the  Supreme  Court  on  the  6th  day 
of  April,  1891. 

There  is  a  class  of  cases,  which,  it  seems,  may  be 
transferred  under  the  provisions  of  this  section, 
wherein,  if  originally  brought  to  the  Court  of  Appeals, 


Transfer  of  Causes.  53 

an  appeal  to,  or  a  writ  of  error  from,  the  Supreme 
Court  will  lie.  In  such  case,  if  a  transfer  from  the 
Supreme  Court  to  the  Court  of  Appeals  be  made, 
can  an  appeal  be  taken  from  the  final  judgment  of 
the  Court  of  Appeals  to  the  Supreme  Court,  by 
appeal  or  writ  of  error  ? 

The  statute  is  silent,  but  if  an  appeal  will  He,  had 
the  case  been  originally  taken  to  the  Court  of 
Appeals,  it  seems  that  it  will  be  governed  by  the 
same  rule  as  other  cases. 

Transfer  of  Cases  from   the  Court  of  Appeals 
TO  the  Supreme   Court. 

Sec.  57.  Section  15  of  the  Court  of  Appeals  Act 
also  provides  that  any  case,  brought  in  the  first  in- 
stance to  the  Court  of  Appeals,  which  might  have 
been  taken,  in  the  first  instance  to  the  Supreme 
Court,  under  section  i  of  the  act,  may  be  removed 
to  the  Supreme  Court  by  appellee  or  the  defendant 
in  error.  To  effect  such  removal,  the  judgment 
appealed  from  must  be  one,  which  under  section  i 
of  the  Court  of  Appeals  Act,  was  appealable  to  the 
Supreme  Court  directly. 

The  only  persons  who  may  ask  the  transfer  of  a 
cause  under  this  section  are  the  appellee  in  an 
appealed  case  and  the  defendant  in  a  writ  of  error. 
Neither  appellant  nor  the  plaintiff  in  error  is  entitled 
to  ask  such  removal,  for  the  reason  that  they  might 
have    taken    the    case    in    the  first   instance   to   the 


54  Practice  in  Courts  of  Review. 

Supreme  Court.  No  reason  for  such  removal  ap- 
pears to  be  required  to  be  given  by  the  party  asking 
the  case  to  be  transferred,  but  on  his  application  the 
cause  is  to  be  transferred  as  of  course.  The  proper 
procedure  in  such  case  is  to  give  a  written  notice  of 
the  application  to  the  adverse  party.  The  court  will 
then,  at  the  time  mentioned  for  hearing  of  the  appli- 
cation, make  the  required  order.  It  seems  that  the 
court  has  no  discretion  to  grant  or  refuse  such  order. 

Time  Within  which  Application  must  be  Made. 

Sec.  58.  The  time  within  which  an  application  to 
transfer  a  cause  to  the  Supreme  Court  must  be  made, 
is  the  same  as  is  the  time  within  which  the  party 
applying  for  the  transfer  is  required  by  law  or  rule 
of  court,  to  file  his  brief  in  the  case  in  the  court. 

By  rule  21  of  the  Supreme  Court,  which  is  also  in 
force  in  the  Court  of  Appeals,  the  appellee  or 
defendant  in  error  is  required  to  hie  his  brief  in  the 
cause,  only,  when  the  plaintiff  in  error  or  appellant 
has  filed  his  abstract  and  brief,  in  pursuance  of  rule 
20,  that  is,  within  sixty  days  after  the  filing  of  the 
transcript  of  the  record  in  the  Court  of  Appeals. 
Hence,  if  such  abstract  be  not  filed  in  time,  or  if 
brief  be  not  filed  in  time,  unless  appellee  or  defend- 
ant in  error  desire  to  have  the  cause  heard  ex  parte, 
there  would  seem  to  be  no  need  of  an  application  for 
the  transfer,  as  under  rule  18  he  may  have  the  appeal 
or  writ  of  error  dismissed.      But,  when  the  adverse 


Procedure  after  Transfer.  55 

party  has  fully  complied  with  the  rules,  the  applica- 
tion to  transfer  may  be  made  at  any  time  between 
sixty  and  one  hundred  days  after  the  transcript  has 
been  filed  in  the  clerk's  office. 

When  a  cause  is  transferred  under  this  section,  the 
cause  is  docketed  in  the  Supreme  Court,  and  the 
transcript  of  the  record,  and  all  papers  filed  in  the 
Court  o.f  Appeals,  prior  to  the  order  of  removal,  in- 
cluding abstracts,  briefs,  etc.,  are  sent  to  the  Supreme 
Court,  with  a  copy  of  the  order  of  transfer.  The 
papers  sent  to  the  Supreme  Court  are  the  original 
papers  filed,  not  transcripts  of  them,  as  is  the  usual 
practice  in  appeals  from  trial  courts.  Nothing 
thereafter  of  the  case  will  remain  or  be  found  in  the 
Court  of  Appeals  except  the  record  entries  of  such 
orders,  as  may  have  been  entered  on  its  journal  in  the 
cause  prior  to  its  removal.  After  being  docketed  in 
the  Supreme  Court  the  cause  stands  on  the  same  foot- 
ing as  other  cases  therein.  If  the  party  asking  the 
transfer  has  not  filed  his  brief  in  the  Court  of  Appeals 
before  the  transfer,  he  should  do  so  within  the  time 
prescribed,  had  it  been  brought  in  the  Supreme 
Court.  No  new  abstracts  or  briefs,  in  lieu  of  those 
filed  at  the  time  of  transfer,  are  to  be  required,  ex- 
cept by  a  special  rule  entered  in  the  particular  case.^ 

All  subsequent  proceedings  are  had  in  the  Supreme 
Court  in  such  case,  and  are  governed  by  the  rules 
prevailing  in  that  court. 

'  Sess.  Laws  1891,  p.  118. 


56  Practice  in  Courts  of  Review. 

Limit    of    Appellate     Jurisdiction    of    Supreme 

Court. 

Sec.  59.  The  appellate  jurisdiction  of  the  Supreme 
Court  which  is  brought  into  exercise  by  writs  of  error 
and  appeals,  extends  to  Jina/ judgments  only  of  the 
trial  courts  of  record  throughout  the  State.  Unlike 
the  Supreme  Courts  of  many  Code  States,  it  can 
entertain  no  appeal  from  or  issue  a  writ  of  error  to 
any  order  or  judgment  of  a  trial  court,  until  a  final 
judgment  has  been  rendered  in  the  action  or  proceed- 
ing, but  it  reviews  all  intermediate  orders  made  in 
the  cause  by  the  trial  court,  on  a  review  of  the  final 
judgment,  if  such  intermediate  order  be  properly 
brought  to  its  attention  by  bill  of  exceptions,  duly 
signed  and  filed,  if  such  intermediate  order  be  sub- 
stantially erroneous  and  injurious  to  the  plaintiff  in 
error  or  appellant.^ 

Under  the  Code  of  1877  the  power  to  review  inter- 
mediate orders  by  a  direct  appeal  therefrom  was  given 
to  the  Supreme  Court,  but  it  was  repealed  in  1879. 
The  same  provision  was  again  given  in  1885,  but  again 
withdrawn  in  1887,  and  during  its  existence  met  with 
but  little  favor  from  the  Supreme  Court.  This  power 
of  review  extends  to  all  final  judgments  of  every 
court  of  the  State  which  acts  under  State  authority 
and  is  a  court  of  record.      It  extends   to  both    civil 


'  Wehl  V.  Keebs,  6  Colo.  167;  Schwabacker  v.  Rush  et  nl., 
81  111.  310;  Schulenberg  v.  Farwell  et  al.^  84  111.  400;  Wasson 
V.  Cone,  86  111.  46. 


Power  to  Review.  57 

and  criminal  cases.  In  criminal  cases,  where  the 
penalty  is  death,  the  power  to  review  the  judgment 
of  the  trial  court  is  in  the  Supreme  QowxX.  exclusively, 
and  cannot  be  exercised  by  the  Court  of  Appeals. 
In  all  other  criminal  cases,  the  review  may  be  had  by 
the  Court  of  Appeals,  and  its  judgment  may  be  then 
reviewed  by  the  Supreme  Court.^ 

But  by  the  first  section  of  the  act  of  1891,  the  right 
to  review  the  judgments  of  courts  of  record  inferior 
to  the  Supreme  Court,  is  limited  to  cases  of  a  civil 
nature,  in  which  the  final  judgment  of  the  trial  court, 
or  in  replevin  the  value  found,  exceeds  twenty- 
five  hundred  dollars  exclusive  of  the  costs  of  the  ac- 
tion. In  addition  to  this,  if  the  action  relate  to  a 
franchise  or  freehold,  or  if  the  decision  of  the  case 
requires  the  court  to  construe  a  provision  of  the 
United  States  or  of  the  State  Constitution,  the  Su- 
preme Court  will  have  jurisdiction.  It  also  has  juris- 
diction to  issue  writs  of  error  to  County  Courts  in 
all  cases.  It  will  be  borne  in  mind  that  the  Court  of 
Appeals  has  concurrent  jurisdiction  in  all  the  above- 
mentioned  cases  with  the  Supreme  Court,  but  such 
jurisdiction  must  be  exercised  in  subordination  to 
the  power  of  the  Supreme  Court  to  review  the  judg- 
ment of  the  Court  of  Appeals  by  appeal  or  writ  of 
error. 


'  People  V.  Richmond,  i6  Colo.  274. 
8 


58  Practice  in  Courts  of  Review. 

Final    Judgment  —  Amount    as    Test    of   Juris- 
diction. 

Sec.  6o.  To  give  either  of  the  courts  of  review 
jurisdiction  to  review  any  cause,  civil  or  criminal,  the 
first  requisite  is  that  the  judgment  h^  final. 

The  courts  invariably  hold  that  a  final  judgment 
is  a  judgment  which  determines  the  essential  ques- 
tions in  the  controversy  between  the  litigating  par- 
ties, and  leaves  the  controversy  in  such  a  condition 
that  a  court  of  review,  if  it  affirm  the  judgment, 
would  direct  the  trial  court  to  proceed  in  due  course 
to  execute  the  judgment  it  has  already  rendered.  If 
the  judgment  rendered  leave  open  for  further  de- 
termination any  of  the  essential  questions  of  the  con- 
troversy, the  judgment  is  not  final. ^ 

But  the  finality  of  the  judgment  is  not  affected  by 
the  fact  of  the  cause  being  reserved  for  further  direc- 
tions in  regard  to  the  mode  of  executing  the  judg- 
ment or  decree,  or  for  further  orders  of  the  court  in 
relation  to  matters  incidental  thereto,  if  the  merits  of 
the  controversy  are  finally  adjudicated.  A  judgment 
that  is  conclusive  of  any  question  which  is  at  issue 
properly  in  the  case  by  the  pleadings  filed  is  held  to 
be  "a  final"  judgment  as  to  that  question. 

Thus  in  the  case  of  Daniels  v.  Daniels'^  the 
Supreme  Court  holds  that  an  appeal  will  lie  under 
the  Code  of  1885  from  a  judgment  awarding  alimony 

'  Daniels  v.  Daniels,  9  Colo.  139.  ^  Id.  140. 


Power  to  Rf,vie\v.  59 

penderite  lite  and  suit  money,  as  it  was  rendered  in  an 
original  proceeding,  seeking  a  separate  and  inde- 
pendent relief,  and  requiring  the  entry  of  a  separate 
judgment.  In  support  of  its  views  it  cites  Sharon  v. 
Sharon,  7  Pacific  Reporter  (California),  456  ;  Loch- 
nane  v.  Lochnane,  78  Ky.  468  ;  Hecht  v.  Hecht,  28 
Ark.  92  ;  Blake  v.  Blake,  80  111.  523  ;  Foss  v.  Foss, 
100  id.  576;  Stillman  v.  Stillman,  99  id.  196,  and 
other  decisions,  holding  such  a  judgment  to  be  ap- 
pealable. 

The  second  requisite  is  that  the  amount  of  money, 
or  the  value  of  the  property  in  replevin  found  for  the 
successful  party,  in  case  of  appeal  to  the  Supreme 
Court,  or  writ  of  error  from  it,  exceed  two  thousand 
five  hundred  dollars,  exclusive  of  the  costs  of  the 
action.  In  this  respect  the  act  of  1891  differs  from 
the  act  of  Congress  conferring  jurisdiction  on  the 
Supreme  Court  of  the  United  States  in  cases  where 
the  matter  in  dispiUe  exceeds  five  thousand  dollars, 
as  the  Colorado  Act  makes  the  '' finar  jtidgment  the 
test  of  jurisdiction.  Thus,  without  regard  to  the 
amount  that  may  have  been  in  controversy,  the  con- 
dition of  jurisdiction  in  the  Supreme  Court  is  that 
the  judgment  be  for  a  sum  exceeding  two  thousand 
five  hundred  dollars,  in  addition  to  the  costs.  This 
jurisdiction  must  appear  by  the  record  of  the  judg- 
ment. If  the  judgment  be  for  two  thousand  five 
hundred  dollars  or  less,  then  no  appeal  to  or  writ  of 
error  from  the  Supreme  Court  will  lie.  and  the  party 


6o  Practice  in  Courts  of  Review. 

desiring  a  review  of  the  judgment  must  resort  to  the 
Court  of  Appeals.  But  there  are  some  exceptions 
to  this  rule,  which  will  be  hereinafter  noted. 

Instances  of  "  Final"  Judgments,  which  are  Re- 
viewable ON  Writ  of  Error  or  Appeal. 

Sec.  63.  Mandamits.  A  writ  of  error  lies  to  re- 
view the  proceedings  by  a  district  judge,  had  in  va- 
cation,^ he  having  entered  what  purports  on  its  face 
to  be  a  final  judgment,  which  determined  the  merits 
of  the  controversy. 

A  final  judgment,  which  is  void  on  its  face.  A  writ 
of  error  lies  to  review  what  assumes  to  itself  the 
force  of  an  adjudication  in  law,  even  though  upon 
the  face  of  the  record  it  may  want  the  essentials  of 
validity.' 

Decree  of  Probate  Court  to  sell,  etc.  A  decree  of  a 
Probate  Court,  made  upon  an  administrator's  peti- 
tion to  sell  real  estate  of  deceased  to  pay  debts,  is 
reviewable  on  writ  of  error. '^ 

Attachment ;  traverse.  The  rulings  of  the  trial 
court,  made  on  the  trial  of  the  issues  on  traverse  of 
an  affidavit  for  an  attachment  of  property,  are  re- 
viewable.* 

Condemnation  proceedings  under  the  Eminent  Do- 
main Act  are  reviewable,  when  the  judge  denies  a 

'  Bean  v.  People,  6  Colo.  98. 

'^  Skinner  v.  Beshoar,  2  Colo.  383  ;  Cooper  v.  Ins.  Co.,  3  Colo.  318. 
^  Vance's  Heirs  v.   Rockwell,  3  Colo.  240;  Sloan   v.  Strickler,  12 
Colo.  179.  •'Wehle  V.  Kerbs,  6  Colo.  167. 


Judgment.  6i 

motion  to  set  aside  the  award.  Such  denial  of  the 
motion  is  such  a  final  determination  as  will  entitle 
the  party  aggrieved  to  a  review  of  the  proceedincrs 
in  a  court  of  review.^ 

In  cojidenination  proceedijigs  where  an  interplea  is 
filed  by  one  who  claims  the  condemnation  money, 
and  without  trying  the  issues  raised  by  the  interplea 
the  court  awards  the  money  to  another  party,  such 
action  of  the  court  is  a  sufficient  final  judgment  to 
entitle  the  party  interpleading  to  have  it  reviewed  by 
a  court  of  review.^ 

The  dejiial  by  the  trial  court  of  a  petitioit  for  leave 
to  intervene  in  a  pending  action  will  entitle  the 
petitioner  to  a  review  of  the  judgment  or  order 
denying  such  petition.'^ 

A  decree  of  restitution,  in  an  action  for  injunction 
for  affirmative  relief,  under  section  159  of  Civil 
Code,  is  a  final  judgment,  and  appealable."* 

What  is  a  Judgment. 

Sec.  61.  The  theory  of  the  law  is  to  provide  as 
adequate  as  possible  redress  for  every  wrong  and 
injury  done  to  the  person  or  property  of  individuals. 
This  redress  is  ordinarily  obtained  through  trials  in 
courts  organized  for  that  purpose,  and  the  adjudica- 
tions of  such  courts,  after  a  patient  and  full  hearing 

'  R.  R.  Co.  V.  Jackson,  6  Colo.  340. 

*  Hutchinson  v.  McLaughlin,  15  Colo.  492. 

^  Henry  v.  Ins.  Co.,  16  Colo.  179. 

^Sprague  v.  Locke  et  al.,  ist  Ct.  of  Appeals.  171. 


62  Practice  in  Courts  of  Review. 

of  the  causes  of  complaint  of  the  plaintiff  and  the 
defenses  of  the  adverse  parties,  and  the  evidence 
produced  by  each  in  support  of  his  plaint  or  defense. 
The  court  is  governed  by  a  line  of  decisions  of  judges 
of  courts  reaching  back  into  distant  ages,  upon  sub- 
jects of  similar  character,  which  is  commonly  known 
as  the  "■  common  law,''  in  adjudicating  the  rights  of 
the  several  parties,  which  common  law  is  supple- 
mented by  statutory  enactments  and  the  decisions  of 
the  highest  courts  of  the  respective  states  down  to 
the  time  of  its  adjudication.  In  redressing  the  wrong 
which  is  the  subject  of  the  action,  the  court  uses  its 
reasoning  powers,  aided  by  the  reasoning  powers  of 
other  judges,  as  made  known  by  their  written  opinions, 
in  cases  nearly,  if  not  in  all  respects,  similar,  and 
with  such  aids  determines  whether  the  parties  are 
entitled  to  any  legal  redress,  and  if  entitled,  what 
redress  is  proper  in  the  case. 

When  it  has  arrived  at  what  it  deems  the  proper 
conclusion,  it  then  makes  known  its  decision,  which 
is  termed  its  judgment.  Such  judgment  is  under- 
stood to  pass  upon  and  decide  every  point,  which  is 
essential  to  a  correct  decision  of  the  controversy.  It 
is  not  indispensable  that  such  decision  be  made  a 
matter  of  record,  to  constitute  it  a  "judgment."  The 
oral  declaration  of  the  conclusion  to  which  it  has 
arrived,  if  intended  to  be  a  judgment,  constitutes  it 
a  judgment,  in  law.^ 

'  Sieber  v.  Frink,  7  Colo.  151. 


Judgments  — Kinds  OF,  63 

But  the  wisdom  of  ages  has  prescribed  that  all 
judgments  so  rendered  shall  be  reduced  to  writing, 
and  entered  of  record  in  the  record  books  of  the 
court,  that  the  actual  judgment  and  its  contents  may 
be  preserved  for  future  use.  This  record,  however, 
is  merely  the  written  evidence  of  what  was  the  actual 
decision  of  the  court  in  the  particular  case,  and  of 
the  contents  of  such  judgment.  Though  the  record 
be  destroyed  by  either  accident  or  design,  the  judg- 
ment will  yet  remain  unaffected  by  such  destruction. 

Classes  and  Kinds  of  Judgments. 

Sec.  62.  Prior  to  the  adoption  of  the  Civil  Code, 
judgments  in  all  actions  at  common  law  were  known 
as  judgments;  judgments  pronounced  in  cases  of 
equitable  cognizance  by  courts  of  equity  were  termed 
"decrees,"  while  a  large  class  of  judgments  made 
during  the  progress  of  the  cause,  during  its  different 
stages,  of  a  merely  interlocutory  character  were  and 
are  called  "  orders." 

But  under  code  practice  all  judgments,  whether  at 
law  or  in  equity,  are  termed  "judgments." 

Judgments  are  of  various  kinds.  First.  Where 
the  facts  are  all  admitted  by  the  parties,  or  rather 
the  facts  set  up  by  the  plaintiff  in  his  complaint,  or 
defendant  in  his  answer,  are  admitted  by  the  adverse 
party,  and  the  court  is  called  upon  by  a  demurrer  to 
determine  the  law  of  the  case.  This  is  termed  a 
judgment  on  demurrer,  and  may  be  final,  if  the  party 


64  Practice  in  Courts  of  Review. 

demurring,  not  satisfied  with  the  decision,  elects  to 
abide  by  his  demurrer  and  take  the  question  of  law 
to  the  court  of  review  for  its  determination.  In  such 
a  case  the  court  renders  a  final  judgment  in  favor  of 
the  party  for  whom  the  demurrer  is  decided. 

Second.  Where  the  facts  are  determined  by  a  jury 
in  common-law  cases,  and  by  the  court  on  a  trial  to 
the  court  in  equity  cases.  This  is  the  more  frequent 
and   usual  class   of  judgments,   which   may  become 

final. 

Third.  Judgments  for  want  of  an  answer  to  the 
complaint  or  reply  to  new  matter  in  an  answer,  com- 
monly known  as  judgments  by  default,  where  the 
failure  to  answer  or  reply  is  taken  as  an  admission 
of  the  truth  of  the  facts  stated  in  the  pleading  not 
answered. 

All  these  judgments  are  final,  and  an  appeal  from 
or  writ  of  error  to  them  is  maintainable. 

No  writ  of  error  or  appeal  is  maintainable  to  any 
order  made  during  the  progress  of  the  cause,  under 
the  Colorado  Civil  Code,  but  all  such  orders  are  re- 
viewed, if  proper  exception  be  taken  in  time,  on  an 
appeal  from  or  writ  of  error  to  the  final  judgment  in 

the  case. 

Every  judgment  should,  on  its  face,  show  the  time 
when  rendered,  the  place  where  the  court  was  sitting, 
the  court  by  which  it  was  rendered,  the  matter  in 
dispute  and  the  final  determination  announced  by 
the  court  as  to  the  rights  of  the  litigants  therein.     If 


Judgments.  65 

the  judgment  entry  state  the  foregoing  facts  sufifi- 
ciently,  the  mode  or  form  of  such  statement  is  not 
material.  Every  court  may  follow  its  own  formula, 
but  the  record  must  clearly  show  that  it  was  the  in- 
tention of  the  court  to  render  a  final  judgment  in  the 
action.  Hence,  mere  findings  of  the  court  are  not  a 
final  judgment.^ 

Common-law  forms  are  habitually  employed  in 
Colorado  practice  in  the  entry  of  common-law  judg- 
ments, as  follows  :  "  It  is,  therefore,  considered  and 
adjudged  by  the  court,  that,"  etc.  In  equity  cases 
decrees  are  usually  drawn  by  counsel  and  submitted 
to  the  court  for  approval  and  for  the  court's  signa- 
ture, and  follow  the  usual  forms  of  decrees  in 
equity. 

No  appeal,  separate  from  the  appeal  from  the  final 
judgment  in  the  action,  or  writ  of  error  to,  it  will  lie 
from  an  interlocutory  judgment  in  any  action  or  pro- 
ceeding. Under  the  present  practice  all  interlocutory 
orders  and  judgments  are  reviewable  only  on  the  ap- 
peal or  writ  of  error  to  the  final  judgment.  So 
findings  of  the  court  or  verdict  of  a  jury,  when  a 
final  judgment  has  not  been  entered  thereon,  are  re- 
viewable only  in  the  same  manner.- 


'  Alvord  V.  McGaughey,  5  Colo.  246. 

*  Andrews  v.  Loveland,  i   Colo.  8  ;    Armor  v.   Lyon,   i   Colo.  7 ; 
Vance's  Heirs  v.  Rockwell,  3  Colo.  240. 


66  Practice  in  Courts  of  Review. 

Franchise  —  Freehold  —  Construction  of  a  Pro- 
vision OF  THE  Constitution. 

Sec.  64.  In  addition  to  final  judgments  for  a  speci- 
fied sum  of  money,  rendered  by  trial  courts  of  record, 
the  Supreme  Court  has  jurisdiction  to  review  any 
judgment  of  such  courts,  which  involves  a  '' fra7i- 
chise''  or  a  ''  freeJioldr 

A  franchise  is  defined  as  a  "  particular  privilege 
conferred  upon  individuals  by  grant  from  the  State." 
It  is  usually  granted  to  a  corporation  for  the  pur- 
pose of  enabling  it  to  do  certain  things,  and  is  vested 
in  the  corporate  entity  as  distinguished  from  the 
officers  of  the  corporation.^ 

Public  offices  are  not  franchises. 

h.  freehold  directly  involves  the  title  to  land. 

To  justify  an  appeal  to  the  Supreme  Court  directly 
or  a  writ  of  error  from  the  Supreme  Court,  on  the 
ground  that  the  matter  in  controversy  relates  to  a 
freehold,  the  title  to  the  freehold  must  have  been 
directly,  and  not  merely  incidentally  or  collaterally, 
the  subject  of  the  action,  which  it  is  sought  to  remove 
to  the  Supreme  Court  for  review.  The  judgment  in 
the  action  in  the  trial  court  must  be  conclusive  of  the 
right  of  freehold  until  it  is  reversed.  The  pleadings 
must  put  in  issue  the  ownership  of  the  fee,  and  the 
necessary  result  of  the  judgment  must  be  to  determine 
to  which  of  the  parties  litigant  the  freehold  belongs. 

'  Brandenburg  v.  Reithman,  7  Colo.  324;  Rose  et  al.  v.  Choteau 
15  111.  167;  McGuirk  v.  Burrey,  93  IH-  "8;  Pinneo  v.  Knox,  100 
111.  471  ;  Clement  v.  Reitz,  103  111.  315. 


Freehold  —  Constitution.  67 

Hence  an  action,  in  which  it  is  sought  to  determine 
the  title  of  land,  when  the  title  is  the  principal  ques- 
tion at  issue,  is  appealable  to  the  Supreme  Court,  with- 
out any  regard  to  its  money  value.  It  follows,  there- 
fore, that  any  action,  whatever  its  nature,  relating  to 
land,  which  does  not  directly  require  a  determina- 
tion of  the  ownership  of  the  fee,  is  not  appealable 
to  the  Supreme  Court,  under  this  provision.  Of 
this  character  are  actions  of  forcible  entry  and 
detainer,  actions  to  foreclose  a  mortgage,  and  actions 
to  establish  or  foreclose  any  other  lien  on  real  prop- 
erty.^ 

When  in  an  action  the  construction  of  a  provision 
of  the  State  Constitution,  or  of  that  of  the  United 
States,  becomes  indispensable  to  the  proper  decision 
of  the  case,  the  cause  may  be  taken  directly  to  the 
Supreme  Court  for  review.  The  decisions  of  the 
United  States  Supreme  Court  on  "  Federal  Ques- 
tions "  will  furnish  a  useful  guide  in  this  class  of 
cases.  The  construction  of  the  provision  of  the  Con- 
stitution, either  of  the  State  or  of  the  United  States, 
must  be  an  essential  question  in  the  action  and  must 
have  received  the  attention  of  the  trial  court.  If  the 
decision  of  the  trial  court  can  be  sustained,  without 
deciding  the  constitutional  question,  and  the  latter 
is  not  an  essential  element  of  its  decision,  the  cause 
is  not  subject  to  be  taken  to  the  Supreme  Court  in 
the  first  instance. 

1  Clement  v.  Reitz,  103  111.  315. 


68  Practice  in  Courts  of  Review. 

The  foregoing  provisions  as  to  franchise,  etc.,  are 
not  of  such  importance  as  they  would  be,  if  the  Court 
of  Appeals  had  not  jurisdiction  to  entertain  and 
determine  them,  since  such  cases  may  be  taken  to 
the  Supreme  Court,  under  subdivision  3  of  section  4 
of  the  Court  of  Appeals  Act,  by  appeal  from  or  writ 
of  error  to  the  judgment  of  the  Court  of  Appeals  in 
such  cases.  For  further  matter  on  freehold,  see 
Appeals,  post,  sec. 

Jurisdiction  to  Review — How  Called  into  Action. 

Sec.  65.  The  Supreme  Court  and  the  Court  of 
Appeals  both  exercise  their  appellate  jurisdiction 
from  inferior  courts  of  record  in  two  distinct  modes  ; 
the  one  by  means  of  the  lorit  of  error,  the  other  by 
an  appeal  from  the  judgment  of  the  trial  court. 

As  by  section  six  (6)  of  the  Court  of  Appeals  Act 
the  procedure  in  the  Court  of  Appeals  is  required  to 
be  as  far  similar  to  that  of  the  Supreme  Court  as  in 
the  judgment  of  the  judges  of  the  Court  of  Appeals 
may  be  practicable,  and  as  the  judges  of  the  Court 
of  Appeals  have  adopted  the  rules  of  the  Supreme 
Court,  with  unimportant  exceptions,  as  the  rules  of 
the  Court  of  Appeals,  all  that  will  hereinafter  be 
stated  relating  to  procedure  and  practice  in  the 
courts  of  review,  will  be  applicable  to  the  procedure 
in  both  courts,  unless  the  difference  in  the  procedure 
is  expressly  pointed  out. 


Writ  of  Error.  69 


CHAPTER  III. 
Of  Writs   of  Error. 

Sec.  66.  Writ  of  error  —  what  is  a. 

d-j.   Proceeding  in  error  a  new  suit. 

68.  Parties  to  writ  of  error. 

69.  Procedure,  when  record  of  trial  court  does  not  show  who 

are  the  proper  parties. 

70.  Procedure  by  defendant  in  error,  if  improper   parties  are 

joined. 

71.  Who  plaintiff  in  error. 

72.  Procedure,  when  one,  who  should  be  a  plaintiff  in  error, 

refuses  to  be  a  party  to  the  proceeding. 

73.  When  a  writ  of  error  will  lie. 

74.  No  separate  writ  of  error  to  proceedings  subsequent  to 

final  judgment. 

75.  Writ  of  error  —  statute  of  limitations. 

76.  Procedure  to  procure  a  writ  of  error. 
']'].   Writ  of  error  —  contents. 

78.  Issuance  of  writ  is  jurisdictional. 

79.  Writ  of  error — how  served. 

80.  Supersedeas  —  how  procured. 

8t.   Procedure  to  procure  supersedeas. 

82.  Form  of  supersedeas —  bond. 

83.  Efifect  of  supersedeas. 

84.  Return  on  writ  —  when  a  supersedeas. 

85.  Supersedeas,  when  appeal  dismissed  without  prejudice. 

Writ  of  Error —  What  is  a. 
Sec.  66.  Error  is  a  proceeding,  in  the  nature  of  an 
appeal,  known  to  the  common  law,  which  is  instituted 


70  Practice  in  Courts  of  Review. 

for  the  purpose  of  obtaining  a  review  by  a  court  of 
review  of  the  proceedings  had  and  of  the  final  judg- 
ment rendered  in  an  action  at  common  law,  which 
has  been  prosecuted  to  a  final  judgment.  The 
ground  upon  which  this  review  is  asked  is,  that  the 
trial  court  has  committed  errors,  in  its  rulings  and 
decisions  on  the  various  questions  which  have  arisen 
during  the  progress  of  the  cause,  resulting  in  a  judg- 
ment, which  are  claimed  to  be  prejudicial  to  the  party 
prosecuting  the  proceeding  in  error,  and  require  its 
reversal  or  modification  by  the  court  of  review. 

The  proceeding  in  error,  commonly  termed  a  writ 
of  error,  at  common  law,  could  be  brought  only  on  a 
final  judgment,  or  an  award  in  the  nature  of  a  final 
judgment.  Practically  the  writ  brought  up  the  en- 
tire record  of  the  cause  to  the  court  of  review,  and 
the  review  had  in  the  latter  court  was  confined  to  only 
such  matters  as  appear  in  the  record,  as  brought  up.^ 

The  writ  of  error  is  common-law  process,  and 
where  the  common  law  is  in  force,  as  it  is  in  Colo- 
rado by  virtue  of  statutory  enactment,  no  legislation 
other  than  that  adopting  the  common  law  is  neces- 
sary to  carry  it  into  effect.  The  writ  of  error  is  fully 
equipped  for  service  by  the  common  law,  and  the  au. 
thority  and  power  of  courts  of  review,  which  are 
vested  with  appellate  jurisdiction,  by  the  Constitution 
and  laws  of  this  State,  to  hear  and  determine  all 
causes  brought  into  them  for  review   by   means   of 


'2Tidd'sPr.  1134,  1142,  1143;  Steph.  PI.  142. 


Writ  of  Error  an  Original  Writ.  71 

a  writ  of  error,  in  proper  cases,  is  complete  without 
any  legislation  thereon  by  the  General  Assembly. 
The  jurisdiction  is  derived  from  the  common  law,  and 
not  from  any  special  legislation  granting  it  to  the 
court. 

The  writ  of  error,  as  it  exists  in  Colorado,  is  as  it 
was  used  by  the  Courts  of  England  prior  to  the  fourth 
year  of  the  reign  of  James  the  First,  and  any  subse- 
quent changes  in  the  practice  thereunder  in  England 
are  of  no  force  in  Colorado,  unless  adopted  by 
special  legislative  enactment  of  the  Territory  or 
State  of  Colorado.^ 

The  Code  of  1877  abolished  the  writ  of  error  in 
civil  cases,  except  writs  of  error  to  County  Courts, 
which  are  preserved  by  a  provision  of  the  Constitu- 
tion, and  substituted  therefor  the  appeal  as  provided 
therein.  But  the  Legislature  of  1879  restored  the 
writ  of  error  as  it  previously  existed,  and  since  that 
date  it  continues  in  existence  in  the  procedure  in 
civil  cases,  and  has  been  constantly  recognized  in  the 
legislation  of  the  State. 

The  writ  of  error  is  an  original  writ,  which  issues 
out  of  a  court  of  review,  having  appellate  jurisdiction 
of  common-law  causes,  for  the  purpose  of  removing 
into  such  appellate  court  the  record  of  the  cause,  in 
the  trial  court,  in  which  the  party  applying  for  such 
removal  alleges  error  to  exist  prejudicial  to  him,  and 
sufficient  to  authorize  the  court  of  review  to  reverse 


'  Stebbins  v.  Anthony,  5  Colo.  273. 


72  Practice  in  Courts  of  Review. 

such  judgment,  for  the  purpose  of  having  such  record 
reviewed  by  the  appellate  court. 

The  writ  issues  under  the  seal  of  the  court  of 
review  and  the  hand  of  its  clerk  ;  is  directed  to  the 
clerk  or  keeper  of  the  records  of  the  trial  court,  the 
proceedings  and  judgment  of  which  is  complained  of 
as  erroneous,  and  commands  such  clerk  or  keeper  of 
its  records  to  certify  to  the  court  of  review,  out 
of  which  the  writ  issues,  a  full  and  correct  transcript 
of  its  record  of  that  particular  action  or  proceeding. 
The  writ  of  error  must  describe  specifically  (i)  the 
particular  record  and  judgment  of  the  trial  court ; 
(2)  the  action  or  proceeding  therein,  in  which  such 
judgment  was  rendered  ;  (3)  the  parties,  both  plain- 
tiffs and  defendants,  to  the  action  or  proceeding  in 
the  trial  court,  and  (4)  must  allege  to  whose  injury 
the  errors  complained  have  intervened.^ 

As  the  sole  office  of  the  writ  of  error  is  to  procure 
the  removal  or  transfer  of  the  record  of  the  particular 
action  or  proceeding  in  the  trial  court  to  the  court  of 
review,  by  means  of  an  authenticated  transcript 
thereof,  and  as  it  is  issued  by  the  clerk  of  the 
appellate  court,  it  is  unnecessary  to  give  the  form  of 
such  writ  herein.  As  to  the  defendant  in  error,  it 
has  no  office  to  perform.  No  action  on  his  part  is 
required  by  it,  nor  can  it  affect  him  in  any  manner. 
The  sole  parties  to  such  writ  are  the  court  of  review 

'  Rule  I  of  Supreme  Court;  Vance's  Heirs  v.  Maroney,  2  Colo. 
293- 


Error  a  New  Action.  73 

and  the  clerk  of  the  trial  court.  Hence,  the  defendant 
in  error  can  properly  make  no  motion  in  the  appellate 
court,  attacking  the  sufficiency  of  the  writ,  or  its 
service.  If  any  error  or  defect  be  found  therein,  a 
motion  in  relation  thereto  should  properly  come  from 
the  plaintiff  in  error,  as  it  is  his  interest  to  see  that  a 
correct  writ  of  error  be  issued  and  be  properly  served, 
and  that  errors  or  defects  in  it  be  corrected  in  apt 

time.^ 

Proceeding  in  Error  a  New  Action. 

Sec.  67.  Under  repeated  decisions  of  the  Supreme 
Court  of  Colorado  and  of  other  States,  the  proceed- 
ing by  writ  of  error  is  a  new  action,  distinct  from 
that  which  was  pending  in  the  trial  court,  which  it 
is  sought  to  have  reviewed  by  the  court  of  review. 
Unlike  the  proceeding  by  appeal  from  the  judgment 
of  the  trial  court,  it  is  not  a  continuation  of  the  orig- 
inal action  in  the  trial  court. 

Being  an  entirely  new  action,  having  for  its  object 
a  review  of  the  final  judgment  of  the  trial  court,  and 
there  being  no  authority,  under  the  present  proced- 
ure in  Colorado,  to  take  a  writ  of  error  to  any  other 
than  the  final  judgment,  it  follows  that  a  final  judg- 
ment, which  disposes  of  the  action  on  its  merits, 
must  have  been  pronounced  by  the  trial  court, 
before  a  writ  of  error  can  be  properly  sued  out. 
Hence  as  the  entire  term  of  the  trial  court  is  in  con- 

'  Rule  I  of  Supreme  Court;  Vance's  Heirs  v.    Maroney,  2  Colo. 

293. 

10 


74  Practice  in  Courts  of  Review. 

templation  of  law  only  one  day,  and  as  the  record  of 
the  cause  is  subject  to  be  changed  or  modified  by  the 
court  at  any  time  prior  to  the  adjournment  of  the 
court  for  the  term,  a  writ  of  error  will  be  prematurely 
instituted,  if  it  is  sued  out  at  any  time  before  the 
trial  court  has  finally  adjourned  for  the  term.^ 

So  it  is  ruled  that  the  writ  of  error  must  be  sued 
out  within  the  time  prescribed  by  the  statute  of  lim- 
itations as  to  bringing  a  writ  of  error,  or  it  will  be 
barred.  But  the  statute  will  not  begin  to  run  until 
the  end  of  the  term  of  the  trial  court  at  which  the 
final  judgment  was  rendered.  On  the  same  principle 
it  is  held  that,  when  the  sole  plaintiff  in  error  is  a 
non-resident  of  the  State,  at  the  time  of  instituting  his 
proceeding  in  error,  he  is  subject  to  the  provisions  of 
the  chapter  of  the  statutes,  entitled  "  Costs,''  and  must 
give  security  for  the  costs  of  the  action.^ 

Parties  to  Writ  of  Error. 

Sec.  68.  As  the  purpose  for  which  a  proceeding  in 
error  is  instituted  is  to  reverse  or  modify  a  judgment, 
rendered  in  an  action  or  proceeding  in  a  trial  court 
of  record,  which  judgment  is  claimed  to  be  prejudi- 
cial to  the  party  prosecuting  the  proceeding  in  error, 
it  is  apparent  that  only  a  party  to  the  action   in  the 

'  Webster  v.  Gaff,  6  Colo.  475  ;  Wise  v.  Brocker,  i  Colo.  90. 

'  W.  U.  T.  Co.  V.  Graham,  i  Colo.  184:  Taplej^  v.  Doane,  2 
Colo.  299  ;  Filley  v.  Cody,  3  Colo.  221  ;  Roberts  v.  Fales,  32  III. 
474;  Ripley  V.  Morris,  2  Gilm.  281  ;  Hickman  v.  Haines,  5  Gilm. 
20;  Smith  V.  Robinson,  11  111.  119;  International  Bank  v.  Jenkins, 
1 14  111.  143  ;  Tidd's  Pr.  1 141. 


Parties  to  Writ  of  Error  75 

trial  court  can  be  a  party  to  the  writ  of  error,  or 
when  such  party  is  deceased,  his  legal  representa- 
tives, or  those  in  privity  with  him.  Persons  in  priv- 
ity with  an  original  party  to  the  action  are  usually 
the  executor  or  administrator  of  his  estate,  if  he  have 
deceased  before  the  suing  out  of  the  writ  of  error, 
and  his  heirs,  if  real  property  be  involved  in  the  lit- 
igation, and  all  persons  who  will  be  directly  affected 
by  the  judgment  of  the  trial  court.  It  follows,  there- 
fore, that  all  persons  who  will  be  directly  affected  by 
the  affirmance  or  reversal  of  the  judgment  reviewed 
or  by  its  modification  in  any  respect,  must  be  made 
parties  to  the  writ  of  error. 

The  person  in  whose  name  the  writ  of  error  is 
sued  out  is  denominated  the  plaintiff  in  error,  and 
the  adverse  party  is  known  as  the  defendant  in  error. 

In  many  cases  the  parties  to  the  action  stand  in 
the  same  relative  position  in  the  court  of  review  as 
they  occupied  in  the  trial  court ;  but  not  infrequently 
their  positions  are  reversed,  and  the  defendant  in  the 
trial  court  is  the  plaintiff  in  error  in  the  court  of 
review. 

When  suing  out  a  writ  of  error  the  attorney  for 
the  plaintiff  in  error  should  be  careful  to  ascertain 
the  names,  both  christian  and  surname,  of  all  persons 
who  are  necessary  parties  to  the  proceeding  in  error, 
both  as  plaintiffs  and  as  defendants,  and  give  their 
names  to  the  clerk  of  the  court  of  review  for  insertion 
in  the  writ  of  error.     The  better  practice,  however. 


76  Practice  in  Courts  of  Review. 

is  for  him  to  file  a  written  precipe  for  a  writ  of  error, 
giving  therein  the  full  christian  and  surname  of  each 
person  therein  named,  as  either  a  plaintiff  or  as  a 
defendant  in  error.  The  names  thus  given  will  be 
inserted  in  both  the  writ  of  error  and  in  the  scire 
facias  to  hear  errors,  and  only  after  a  service  of  the 
scire  facias  can  the  question  of  nonjoinder  or  mis- 
joinder of  parties  be  raised. 

Procedure  when   Record   of   Trial   Court    does 
NOT  Show  who  are  the  Proper   Parties. 

Sec.  69.  It  will  sometimes  happen  that  the  tran- 
script of  the  record  sent  up  from  the  trial  court  does 
not  show  who  are  the  proper  parties  to  the  writ  of 
error.  This  will  be  occasioned  by  the  death  of  the 
original  parties  to  the  action,  or  of  some  one  or  more 
of  them  on  either  side.  It  then  becomes  necessary 
to  make  new  parties  to  the  proceeding  in  error  by 
substituting  for  the  deceased  persons  their  legal 
representatives,  or  persons  in  privity  with  them.  The 
Supreme  Court  thus  points  out  the  proper  procedure 
in  such  cases  :  "  We  are  of  opinion  that  the  proper 
practice  in  all  cases  where  the  record  does  not  dis- 
close the  names  of  persons  who  should  be  made 
parties  to  the  proceedings  in  error,  is  for  the  plaintiff 
in  error  or  his  attorney  to  file  with  the  clerk  of  the 
court  an  affidavit,  setting  forth  the  names  of  all  per- 
sons, so  far  as  known,  whose  interests  would  be 
affected  by  the  proceedings,  or  who  are  necessary 


Proper  Parties.  yj 

parties  thereto.  In  addition  to  this  affidavit  2l precipe 
should  be  filed  directing  the  clerk  to  issue  a  scire  facias 
to  hear  errors,  directed  to  the  persons  therein  named 
as  defendants  in  error."  ^ 

The  affidavit  above  required  should  state  (i)  the 
full  christian  and  surname  of  each  person  who  it  is 
intended  shall  be  made  a  defendant  in  error ;  (2) 
where  he  resides  or  may  be  found,  so  that  personal 
service  of  the  scire  facias  may  be  made  upon  him  ; 
(3)  the  relation  each  such  person  bears  to  the  action, 
as  that  he  is  a  surviving  heir,  executor  or  adminis- 
trator, etc.,  and  (4)  the  reasons  why  such  person  or 
persons  are  necessary  or  proper  parties  to  the  writ  of 
error.  This  affidavit,  with  the  precipe  indicated  by 
the  Supreme  Court,  should  be  filed  with  the  court  of 
review  at  the  time  of  suing  out  the  writ  of  error. 

Procedure  by  Defendant  in  Error  if  Improper 
Parties  are  Joined  or  Necessary  Parties 
Omitted. 

Sec.  70.  The  omission  of  necessary  parties  or  the 
joinder  of  improper  parties  is  held  by  the  Supreme 
Court  to  be  no  ground  for  a  motion  to  dismiss  a  writ 
of  error.  The  defect  lies  in  the  scire  facias,  as  the 
naming  of  the  parties  in  the  writ  of  error  is  merely 
for  the  purpose  of  identifying  the  record,  a  transcript 
of  which  is  desired,  while  the  scire  facias  is  the  pro- 
cess  by  which   the  defendants  in  error  are  brought 

'  Israel  v.  Arthur,  6  Colo.  85. 


-Q 


8  Practice  in  Courts  oy  Review. 

within  the  jurisdiction  of  the  court,  and  no  one  can 
be  affected  by  its  determination  of  the  cause  in  error, 
who  is  not  made  a  party  and  subjected  to  the  juris- 
diction of  the  court  by  proper  service  of  the  scire 
facias  on  him. 

When,  therefore,  necessary  parties  are  not  named 
in  the  scire  facias,  or  the  names  of  improper  parties 
are  inserted  therein,  the  proper  practice  is  to  attack 
the  scire  facias  by  a  motion  to  have  the  omitted 
parties  made  parties  to  the  writ  of  error  and  their 
names  inserted  in  the  scire  facias,  or  the  proceeding  in 
error  dismissed  as  to  the  parties  improperly  made 
parties  thereto.  The  Supreme  Court  thus  points  out 
the  correct  practice  in  such  cases. 

"  If  objection  be  made  that  proper  parties  to  the 
proceeding  in  error  have  not  been  made,  or  that  per- 
sons have  been  improperly  joined,  the  names  of  such 
persons,  together  with  the  facts  necessary  to  enable 
the  court  to  pass  upon  the  point,  would  have  to  ap- 
pear in  like  authentic  manner,"  that   is,  by  affidavit.' 

This  motion,  however,  should  not  be  made  until  it 
is  ascertained  by  the  scire  facias,  on  its  return,  that 
it  does  not  contain  the  names  of  the  necessary  par- 
ties, or  contains  the  names  of  improper  parties.  The 
motion  for  misjoinder  can  only  be  made  by  the 
person,  who  is  improperly  made  a  party  to  the  pro- 
ceeding in  error,  as  his  improper  joinder  will  not 
materially  affect  the  interests  of  those  who  are  proper 

'  Israel  v.  Arthur,  6  Colo.  85. 


Misjoinder  of  Parties.  79 

parties  thereto,  and  such  improper  joinder  is  no  suf- 
ficient ground  of  objection  by  any  one,  but  the  person 
who  is  not  a  proper  party  to  the  proceeding. 

But  where  necessary  parties  are  omitted,  it  seems 
that  the  parties  made,  and  served,  may  raise  the  ob- 
jection of  want  of  parties,  only  when  the  joinder  of 
the  omitted  parties  is  required  to  enabJe  the  court  by 
adjudicating  the  rights  of  such  parties  to  adjudicate 
and  pass  upon  all  the  questions  material  to  a  complete 
determination  of  the  cause  in  error.  If  the  cause  in 
error  may  be  determined  without  prejudice  to  the 
rights  of  the  omitted  parties,  or  by  saving  their  rights, 
the  objection  of  want  of  proper  parties  will  not  be 
entertained  by  the  court.  It  is  a  universal  principle  of 
jurisprudence  that  a  court  is  without  any  authority 
to  adjudicate  the  rights  of  parties  who  are  not  be- 
fore it  by  the  due  and  legal  service  of  process. 

The  objection  of  "want  of  necessary  or  proper 
parties  "  is  to  be  raised,  at  as  early  a  period  as  possi- 
ble, after  the  service  and  return  the  scire  facias,  by  a 
motion  in  writing,  filed  with  the  clerk,  and  supported 
by  an  affidavit.  The  affidavit,  which  maybe  made  by 
any  person  cognizant  of  the  facts,  must  state  the  par- 
ties that  have  been  omitted;  where  they  reside  or  may 
be  found  ;  how  they  are  necessary  parties  to  the  pro- 
ceeding in  error  ;  their  relation  to  the  parties  to  the 
original  action,  either  as  legal  representatives,  or  as 
in  privity  with  them,  and  all  facts  in  detail,  sufficient 
to  enable  the  court  to  pass  upon  the  question  under- 


8o  Practice  in  Courts  of  Review. 

standingly.  This  is  particularly  necessary  to  enable 
the  court  to  see  whether  the  presence  of  the  persons 
named,  as  parties,  is  indispensable  to  the  proper  ad- 
judication of  the  essential  questions  raised  by  the 
proceeding  in  error.  There  would  appear  to  be  no 
objection  to  the  filing  of  counter  affidavits,  if  the 
motion  is  resisted,  and  the  court  would  give  leave  to 
file  them,  when  it  finds  them  useful  or  necessary  to 
the  proper  determination  of  the  question.  If,  how- 
ever, the  affidavit  in  support  of  the  motion  be  not  full 
and  complete,  or  defective  in  any  material  respect,  a 
counter  affidavit  will  be  unnecessary. 

The  motion  to  make  necessary  parties  may  also  be 
made  by  or  on  behalf  of  the  omitted  parties,  by  their 
asking  to  be  permitted  to  come  in  as  parties  and  be 
allowed  to  prosecute  or  defend,  as  their  rights  may 
require.  In  such  case  the  omitted  parties  will  enter  a 
general  appearance,  and  their  names  will  be  inserted  in 
the  record  of  the  court  of  review  in  the  cause  in  error. 

If  the  motion  be  by  the  other  parties  to  the  rec- 
ord, and  the  court  allows  the  motion,  an  order  is 
made  that  an  alias  scire  facias  issue  containing  the 
names  of  the  necessary  parties,  who  had  been  omit- 
ted, and  be  served  upon  them  at  as  early  a  day  as 
possible. 

If  the  court  be  satisfied  that  the  person  objecting  \.o 
his  being  made  a  party  is  neither  a  necessary  or 
proper  party,  it  will  order  the  proceeding  dismissed 
as  to  him. 


When  Writ  of  Error  Lies.  8i 

Who  Plaintiff  in  Error. 

Sec.  71.  Under  the  Code  a  writ  of  error  lies  from 
the  Supreme  Court  to  every  final  judgment  of  a  court 
of  record.  There  is  but  one  exception  to  this  rule, 
made  by  the  Court  of  Appeals  Act  of  1891,  in  a  final 
judgment  of  a  court  of  record,  including  the  Court 
of  Appeals,  in  cases  where  the  amount  of  the  judgment 
is  twenty-five  hundred  dollars  or  less,  or  the  value  of 
the  property  in  replevin  is  found  to  be  of  that  value 
or  less.  Such  cases  are  not  subject  to  review  by  the 
Supreme  Court, 

Aside  from  this  exception,  any  party  to  a  judgment 
of  a  court  of  record,  who  claims  that  there  is  in  such 
judgment  reversible  error  to  his  prejudice,  may  have 
a  writ  of  error  to  such  judgment  from  either  the 
Court  of  Appeals  or  the  Supreme  Court. 

The  writ  of  error  issues  of  course  on  application 
to  the  clerk  of  the  court  of  review,  and  payment  of 
the  docket  fee.  He  is  not  required  to  procure  an 
allowance  of  the  writ  of  error  by  a  judge  of  a  court, 
as  is  the  practice  of  the  Federal  Supreme  Court,  and 
the  courts  of  some  of  the  States,  nor  is  he  required 
to  give  bond  for  the  payment  of  the  costs  of  the  pro- 
ceedings, unless  he  be  a  non-resident  of  the  State  or 
within  the  provisions  of  the  statute  of  "  Costs "  as 
amended  in  1885.  It  does  not  matter  whether  he  is 
a  sole  plaintiff  or  one  of  several    plaintiffs,  or  a  sole 

defendant  or  one  of  several  defendants.     If  he  feel 
II 


82  Practice  in  Courts  of  Review. 

aggrieved  by  the  judgment  of  the  trial  court,  he  may- 
sue  a  writ  of  error  out  of  the  Court  of  Appeals,  or  in 
proper  cases  out  of  the  Supreme  Court.  If  the  judg- 
ment is  reviewable  by  the  Supreme  Court,  under  the 
Court  of  Appeals  Act,  a  writ  of  error  may  in  like 
manner  be  sued  out  of  the  Supreme  Court  to  the 
judgment  of  that  court. 

If  in  the  trial  court  he  have  been  successful,  but 
the  judgment  is  not  satisfactory  to  him,  he  may  take 
a  writ  of  error  to  such  judgment.  It  is  held  that 
the  only  mode  by  which  a  successful  plaintiff  can 
procure  a  review  of  a  judgment  in  his  favor  is  by  a 
proceeding  in  error,  and  that  no  appeal  will  lie  in 
such  cases.' 

Procedure,  When  One,  Who  Should  be  a  Plain- 
tiff IN  Error,  Refuses  to  be  a  Party  to  the 
Proceedings  in  Error. 

Sec.  72.  It  will  sometimes  happen  that,  where  there 
is  more  than  one  person  as  a  party  on  either  side  of  the 
controversy,  some  one  or  more  of  such  persons  will  re- 
fuse to  participate  in  prosecuting  the  proceedings  in 
error.  At  common  law,  if  the  proceedings  in  error 
were  brought  by  the  plaintiffs  in  the  trial  court,  it 
was  necessary  for  all  the  plaintiffs  to  unite  in  prose- 
cuting the  writ  of  error  in  the  court  of  review  ;  but 
if  the  proceedings  in  error  were  brought  by  the  de- 
fendants in  the  trial  court,  all  must  either  join  in  the 


Hall  V.  Payrock,  etc.,  Co.,  6  Colo.  81. 


Parties  Plaintiff.  83 

proceedings,  or  if  any  refused  to  be  parties  to  the 
writ  of  error,  the  parties  refusing  must  be  summoned, 
and  then  be  severed. 

This  rule  of  the  common  law  has  been  abrogated  in 
Colorado  by  the  following  provision  of  the  Code: 

"  In  all  cases,  where  a  judgment  or  decree  shall  be 
rendered  in  any  court  of  record,  in  any  case  whatever, 
either  in  law  or  in  chancery,  against  two  or  more 
persons,  either  one  of  said  persons  shall  be  permitted 
to  remove  said  suit  to  the  Supreme  Court,  by  appeal  or 
writ  of  error,  and  for  that  purpose  shall  be  permitted 
to  use  the  names  of  all  persons,  if  necessary;  but  no 
costs  shall  be  taxed  against  any  person  who  shall  not 
join  in  said  appeal  or  writ  of  error,  and  all  such  suits 
shall  be  determined  in  said  Supreme  Court  as  other 
suits  are,  and  in  the  same  manner  as  if  all  the  parties 
had  joined  in  the  appeal  or  writ  of  error.^ 

By  virtue  of  this  provision  the  plaintiff  in  error  is 
enabled  to  bring  all  proper  parties  before  the  court, 
notwithstanding  any  unwillingness  to  join  in  the 
proceeding  on  the  part  of  any  one,  and  thus  enable 
the  court  of  review  to  pass  upon  the  proceedings  had 
in  the  trial  court,  which  it  will  not  do  unless  all  par- 
ties who  may  be  materially  affected  by  its  decision 
are  before  it. 

When  this  section  of  the  Code  is  availed  of,  it  is 
proper  for  the  plaintiff  in  error  to  point  out  in  his 
precipe,  or  in  some  other  suitable  manner,  who  of  the 

'Code,  §406, 


84  Practice  in  Courts  of  Review. 

plaintiffs  in  error  on  the  record  of  the  court  of  review 
refuse  to  join  in  prosecuting  the  proceedings  in  error, 
that  the  clerk  may  be  advised  what  parties  named  on 
the  record  are  not  to  be  taxed  with  costs. 

When  a  Writ  of  Error  will  Lie. 

Sec.  jT).  At  common  law  a  writ  of  error  lies  only 
to  /i7ial  judgments,  which  have  been  rendered  in 
actions  that  are  prosecuted  according  to  the  course  of 
the  common  law.  If  the  proceeding  is  a  summary 
one  or  not  according  to  the  course  of  the  common 
law,  no  writ  of  error  will  lie  to  the  final  judgment 
therein.  So  suits  and  proceedings  in  a  court  of  equity 
are  reviewable  only  by  appeal  from  the  chancellor's 
decree,  and  not  by  writ  of  error.  But  these  rules  of 
procedure  have  been  changed  by  the  Code,  and  under 
its  provisions  all  final  judgments,  whether  in  common 
law  or  equitable  actions,  may  be  reviewed  either  by 
appeal  or  by  writ  of  error.    The  Code  provides,  that  : 

"  Writs  of  error  shall  lie  from  the  Supreme  Court 
to  every  final  judgment  of  any  court  of  record  of 
this  State." 

This  Code  provision  is  made  applicable  also  to  the 
Court  of  Appeals  by  the  Court  of  Appeals  Act  of 
1891. 

The  provision  is  a  broad  one,  the  word  "every" 
including  all  final  judgments  which  may  be  rendered 
by  a  trial  court  of  record,  acting  under  the  authority 
of  the  State  of  Colorado.      Hence,   unlike   the   pro- 


Writ  of  Error.  85 

cedure  in  many  States,  in  Colorado,  the  writ  of  error 
is  not  confined  in  its  operation  to  the  cases  of  final 
judgments,  rendered  in  actions  at  law,  as  distinguished 
from  equitable  actions  and  summary  or  statutory  pro- 
ceedings. If  the  trial  court  have  the  right,  in  the 
exercise  either  of  its  common-law  jurisdiction,  or  of  its 
chancery  powers,  or  of  a  summary  or  special  statutory 
jurisdiction,  to  render  a  judgment,  finally  adjudicating 
on  and  determining  the  rights  of  the  parties  thereto 
before  it,  such  a  judgment  will  be  subject  to  review 
in  one  of  the  courts  of  review  by  a  writ  of  error.  The 
distinction  in  the  mode  of  procedure,  in  the  review 
of  cases  at  law  and  suits  in  equity,  which  existed 
prior  to  the  adoption  of  the  Code,  no  longer  has  a 
standing  in  Colorado  procedure. 

The  indispensable  requisites,  which  entitle  a  party 
to  any  action  or  proceeding,  had  in  a  trial  court  of 
record  of  the  State,  who  deems  himself  aggrieved  by 
the  judgment  of  such  court,  to  sue  out  a  writ  of  error 
from  the  proper  court  of  review  to  such  judgment, 
are: 

First,  that  the  judgment  be  that  of  a  court  of 
record,  acting  under  the  laws  of  the  State.  Hence 
in  Colorado  no  writ  of  error  lies  from  any  court  ex- 
cept the  Court  of  Appeals  or  the  Supreme  Court. 
The  District  Court  has  no  authority  to  issue  a  writ  of 
error  to  any  inferior  court,  as  is  the  practice  of  many 
Code  States ;  and  the  two  courts  of  review  have  no 
authority  to  issue  a  writ  of  error  to  the  judgment  of 


86  Practice  in  Courts  of  Review. 

any  other  court,  unless  such  court  be  a  court  of 
record,  which  acts  under  the  authority  of  the  State. 

Second,  that  the  judgment  sought  to  be  reviewed 
have  finally  adjudicated  all  the  material  issues  neces- 
sary to  the  proper  determination  of  the  questions 
involved,  and  leaves  nothing  to  be  done  by  the 
trial  court,  except  to  execute  or  enforce  its  judg- 
ment. 

Third,  that  the  said  judgment  be  one,  which  the 
court  out  of  which  the  writ  issued  has  jurisdiction 
under  the  laws  of  the  State  to  review. 

Fourth,  that  the  party  suing  out  the  writ  of  error 
claims  to  be  aggrieved  by  such  judgment. 

It  is  not  essential  that  such  judgment  be  a  valid 
judgment  on  its  face.  If  the  transcript  of  the  record 
filed  in  the  court  of  review  carries  on  its  face  2.  final 
adjudication  of  the  matters  litigated  therein  between 
the  parties,  although  on  its  face  it  may  show  a  want 
of  essentials  to  a  valid  judgment,  a  writ  of  error  will 
lie  to  reverse  it.^ 

In  the  case  then  under  review  by  the  Supreme 
Court  on  writ  of  error  to  the  County  Court  of  Las 
Animas  county,  the  record  filed  in  the  Supreme 
Court  was  defective,  in  that  it  showed  no  placita,  by 
which  the  presence  of  the  judge  and  other  officers  of 
the  court  was  made  to  appear.  The  placita  was  held 
to  be  indispensable  to  the  record,  and  as  the  Supreme 
Court  presumes  that  the  transcript  filed  in  the  appel- 

'  Skinner  v.  Beshoar,  2  Colo.  283. 


When  Writ  of  Error  Lies.  87 

late  court  is  a  true  copy  and  transcript  of  the  record 
as  it  exists  in  the  trial  court,  though  the  court  held 
the  judgment  to  be  void  on  its  face,  yet  it  held  that 
it  was  reviewable  on  writ  of  error. 

This  doctrine  that  a  writ  of  error  lies  only  to  final 
judgments  has  frequent  illustrations  in  the  decisions 
of  the  Supreme  Court  of  Illinois,  as  well  as  the  de- 
cisions cited  of  the  Supreme  Court  of  Colorado,  be- 
low referred  to.^ 

It  is  there  held,  however,  that  no  writ  of  error  lies 
to  a  judgment  rendered  by  the  court  when  the  plain- 
tiff takes  a  voluntary  nonsuit,  though  such  nonsuit  is 
with  a  right  to  apply  to  the  court  to  set  it  aside,  and 
the  trial  court  on  application  refuses  to  set  the  non- 
suit aside. 

So  no  writ  of  error  will  lie  to  a  decree  which  is 
entered  by  consent  of  parties.^ 

So  it  is  held  in  Illinois  that  a  writ  of  error  will  not 
lie  from  the  Supreme  Court  to  a  judgment  of  the 
appellate  court,  which  merely  reverses  the  judgment 
of  the  trial  court  and  remands  it  for  further  proceed- 
ings in  the  trial  court. 

This  ruling,  it  seems,  will  be  good  in  a  similar 
case  under  the  Court  of  Appeals  Act  of  Colorado, 
such  a  decision  of  the  court  not  being  a  final  judg- 

'Moodv  V.  Peake,  13  111.  343;  Keel  v.  Bentley,  15  111.  225; 
Walker  v.  Oliver,  63  111.  199;  Phelps  v.  Picks,  63  111.  201 ;  Williams 
V.  La  Valle,  64  111.  no;  Ex  parte  Thompson,  93  111.  89. 

^  Barnes  v.  Barber,  i  Gilm.  401  ;  Lombard  v.  Cheever,  3  Gilm. 
470;  Rankins  v.  Curtenius,  12  111.  336;  Brown  v.  Malledy,  19  III. 
290;  Armstrong  V.  Cooper,  11  111.  540. 


88  Practice  in  Courts  of  Review. 

ment  within  the  intent  of  the  section  of  the  Code 
above  cited. ^ 

A  writ  of  error  may  be  brought  by  a  plaintiff  to 
reverse  a  judgment  rendered  by  the  trial  court  in  his 
favor,  if  he  deem  it  erroneous.^ 

A  party  may  bring  a  writ  of  error  to  reverse  a 
judgment  against  him,  notwithstanding  he  has  paid 
the  judgment,  since  his  payment  will  be  under  legal 
compulsion  and  not  voluntary,  if  such  judgment 
might  have  been  enforced  by  execution  or  other 
compulsory  process.^ 

A  writ  of  error  lies  to  the  decision  of  the  trial 
court  overruling  a  motion  to  set  aside  a  judgment  of 
that  court,  and  refusing  to  quash  an  execution  issued 
thereon.'* 

Although  the  plaintiff  has  taken  a  voluntary  non- 
suit as  to  one  of  the  defendants  in  an  action  ex  delicto, 
he  is  not  thereby  precluded  from  prosecuting  a  writ 
of  error  to  the  judgment  of  the  trial  court,  which 
discharges  one  or  more  of  the  other  defendants  in 
such  suit,  either  on  the  pleadings  or  on  the  evidence. 

A  writ  of  error  does  not  lie  to  an  order  setting 
aside  the  judgment  and  granting  a  new  trial,  under 
the  statute,  this  not  being  a  final  judgment  on  the 
merits. 

'Anderson  v.  Fruitt,  io8  111.  378;  Rogers  v.  Traver,  115  111.  113. 

"^  1  Tidd's  Pr.  11 34;  Johnson  v.  Jibbs,  2  Burr.  1772  ;  Teal  v.  Rus- 
sell, 2  Scam.  321;  Jones  V.  Wight,  4  Scam.  338;  Davidson,  Admr., 
V.  Bond,  12  111.  84;  Fuller  v.  Robb,  26  111.  246;  Thayer  v.  Finley, 
36  111.  262  ;  Hall  V.  Pay  Rock  Co.,  6  Colo.  81  ;  Bernard  v.  Boggs,  4 
Colo.  73. 

^Richeson  v.  Ryan,  14  111.  74.  ■»  Sloo  v.  Bank,  i  Scam.  428. 


When  Writ  of  Error  Lies.  89 

So  a  writ  of  error  does  not  lie  to  hear  exceptions 
to  a  judgment  which  has  been  reversed  in  the  court 
of  review,  and  stands  for  a  new  trial  or  hearing  in 
the  trial  court.^ 

A  writ  of  error  does  not  lie  on  behalf  of  the  people 
of  the  State  to  review  the  final  judgment  of  a  District 
Court  in  a  prosecution  for  a  criminal  offense." 

This  rule,  it  seems,  is  applicable  to  judgments  of 
the  Court  of  Appeals,  though  all  judgments  of  that 
court  are  reviewable  by  the  Supreme  Court  in  crimi- 
nal cases.  The  question  is  now  pending  in  the  case 
of  People  V.  Hadley  et  al.,  commonly  known  as 
the  Boodlers'  case,  wherein  the  Court  of  Appeals  re- 
versed the  judgment  of  the  District  Court  of  Arapahoe 
county,  convicting  the  defendants  of  forgery,  holding 
the  offense  proved  not  to  be  forgery,  and  remanded 
the  case  to  the  District  Court  for  further  proceedings 
by  that  court.  To  the  judgment  of  the  Court  of 
Appeals  the  People  sued  out  a  writ  of  error  from  the 
Supreme  Court,  and  Justice  Elliott  in  vacation 
ordered  the  writ  to  be  made  a  supersedeas.  The  case 
is  now  pending  and  will  determine  the  important 
question  whether  a  writ  of  error  will  lie  to  a  judg- 
ment of  the  Court  of  Appeals  on  behalf  of  the 
People  in  a  criminal  case. 

1  Barnes  v.  Barber,  i  Gilm.  401  ;  Williams  v.  La  Vallee,  64 III.  no; 
Rankin  v.  Ballance,  13  111.  706. 

^  People  V.  Royal,  i  Scam.  557  ;  People  v.  Dill,  i  Scam.  257  ; 
People  V.  Ingraham,  i  Scam.  556. 

12 


90  Practice  in  Courts  of  Review. 

A  Separate  Writ  of  Error  does  Not  Lie  to  Pro- 
ceedings IN  the  Action  which  Occur  Subsequent 
TO  the  Rendition  of  the  Final  Judgment. 

Sec.  74.  Prior  to  the  amendment  to  the  Code  of 
1889,  proceedings  in  an  action,  had  in  the  trial  court, 
after  the  rendition  of  the  final  judgment  therein,  were 
not  reviewable  on  a  writ  of  error,  except  such  pro- 
ceedings as  occurred  in  the  awarding  of  execution  of 
such  judgment.^  But  by  that  amendment  a  court  of 
review  is  now  empowered  to  review  all  proceedings 
which  may  be  had,  and  orders  made  therein,  subse- 
quent to  the  rendition  of  the  final  judgment,  in  like 
manner  and  with  like  effect  as  it  may  review  orders  and 
proceedings  in  the  action,  which  occur  during  its  pen- 
dency, and  prior  to  the  final  judgment  therein.  This 
would  seem  to  include  orders  in  proceedings  sup- 
plementary to  execution,  orders  allowing  or  denying 
motions  to  vacate  a  judgment,  and  allow  a  defend- 
ant to  come  in  and  defend  on  the  merits,  and  numer- 
ous other  orders,  which  may  be  applied  for  and  al- 
lowed or  denied  in  exercise  of  the  court's  inherent 
power  to  control  and  enforce  its  judgments. 

The  amendments  of  1889  are  held  by  the  Supreme 
Court  not  to  abrogate  the  former  practice  of  the 
court,  and  authorize  a  new  and  independent  writ 
of  error  in  all  cases  of  orders  made  after  judgment, 
which,  it  is  alleged,  are  erroneous.  There  are  various 
classes  of  cases,  some  of  which  relate  to  errors  com- 

'  Polk  V.  Butterfield,  9  Colo.  325;  Cross  v.  Moffatt,  11  Colo.  210, 


Proceedings  after  Final  Judgment.  91 

mitted  in  proceedings  had  during  the  pendency  of 
the  action,  which  errors,  by  mistake  or  misprision  of 
the  clerk  in  entering  the  proper  orders,  do  not  appear 
by  the  transcript  of  the  record,  and  an  application  is 
made  to  the  trial  court  for  the  correction  of  its  rec- 
ord, and  the  trial  court  declines  to  order  the  desired 
correction.  In  such  case,  the  original  cause  being  in 
the  Supreme  Court  for  review,  the  action  of  the  trial 
court  in  refusing  to  make  the  desired  correction  may 
be  reviewed  by  the  Supreme  Court  on  a  supplemental 
transcript  to  the  original  transcript  already  filed 
therein.^ 

If,  however,  the  proceeding  after  judgment  be  one, 
such  as  a  refusal  to  quash  an  execution  for  substantive 
defects  appearing  on  the  face  of  the  writ  or  the  re- 
fusal or  allowance  of  a  motion  to  vacate  a  judgment 
on  the  ground  of  mistake,  surprise,  accident,  or  ex- 
cusable negligence,  or  orders  made  or  denied  in  sup- 
plementary proceedings  and  other  similar  cases, 
wherein  the  sole  errors  complained  of  occur  in  the 
proceedings  after  judgment,  and  no  error  of  any 
kind  whatever  is  alleged  to  have  occurred  in  the  pro- 
ceedings before  judgment,  it  would  seem  tmneces- 
sary  to  take  to  the  court  of  review  a  complete  tran* 
script  of  the  original  record,  and  that  the  true  intent 
of  the  amendment  is  to  allow  a  separate  writ  of  error 
to  such  subsequent  proceedings,  when  the  original 
proceedings  are  in  no  manner  attacked  or  called  in 

'  Pleyte  v.  Pleyte,  14  Colo.  593. 


92  Practice  in  Courts  of  Review. 

question.  This  point  is  not  adjudicated  by  the  case 
above  referred  to,  as  we  understand  it,  and  no  adju- 
dication directly  in  point  has  as  yet  been  made  by 
either  of  the  courts  of  review. 

Writ  of  Error  —  Statute  of  Limitations  as  to. 

Sec.  75.  "  A  writ  of  error  in  civil  cases  shall  not  be 
sued  out  after  the  expiration  of  tJiree  years  from  the 
rendition  of  the  judgment  or  decree  complained  of. 
But  when  a  person  who  thinks  himself  aggrieved 
by  a  judgment  or  decree,  which  is  reviewable  in  a 
court  of  review,  shall  be  an  infant,  non  compos  mentisy 
or  imprisoned,  at  the  time  the  same  was  rendered, 
the  time  of  such  disability  shall  be  excluded  from 
the  time  of  such  three  years."^ 

The  time  given  by  the  Code  of  1883  was  five 
years,  instead  of  the  three  years  now  given  by  the 
Code  of  1 887. 

Statutes  which  limit  the  time  within  which  a 
cause  may  be  taken  to  a  court  of  review  are  in  the 
nature  of  statutes  of  repose,  and  when  the  time 
thereby  limited  has  expired,  the  right  to  have  the 
judgment  undisturbed  by  a  review  thereof  in  a  court 
of  review  becomes  a  vested  right  in  the  party  in 
whose  favor  the  limitation  exists,  and  no  subsequent 
legislation  can  affect  such  right  to  his  injury.^ 

Practitioners  will  note  that  a  married  woman  is 
not,  in  Colorado,  exempt  from  the  operation  of  the 

»  Code,  §  401-  ^,      ,        ^  , 

2  Willoughby  v.  George,  5  Colo.  80  ;  Clayton  v.  Cheely,  5  Colo.  337. 


Limitations. 


93 


statute  of  limitations,  as  she  is  in  other  States.  This 
arises  from  the  Married  Woman's  Act  of  the  State, 
which  places  a  married  woman  on  the  same  footing 
as  to  her  liabilities  and  rights  as  if  she  were  sole  and 
unmarried.  Hence  in  civil  cases  the  disability  of  cover- 
ture does  not  exist  in  Colorado,  though  the  rule  is 
otherwise  in  criminal  cases.  An  infaiit  in  Colorado 
is  a  male,  who  has  not  yet  attained  his  twenty-first 
year,  and  a  female  who  has  not  attained  her  eighteenth 
year.  The  three  years'  limitation  begins  to  run  on 
the  day  next  succeeding  that  on  which  he  or  she 
attains  his  or  her  majority,  and  the  writ  of  error 
must  be  sued  out  within  three  years  from  that  day. 

So,  if  the  party  be  non  compos  mentis  on  the  day 
on  which  the  judgment  is  rendered,  the  writ  of  error 
must  be  sued  out  within  three  years  from  the  day  of 
his  restoration  to  reason. 

So,  if  the  party  be  in  prison  at  the  date  of  the 
rendition  of  the  judgment,  the  three  years  within 
which  the  writ  of  error  proceeding  must  be  brought, 
dates  from  the  day  of  his  discharge  from  the  im- 
prisonment. 

In  connection  with  this  matter  of  the  statute  of 
limitations  arises  the  question,  whether  section  2917 
of  Mills'  Ann.  Statutes  is  applicable  to  the  suing 
out  of  a  writ  of  error.  It  authorizes  the  commence- 
ment of  a  new  action,  under  certain  circumstances, 
where  the  original  action  abates  by  operation  of  law, 
in  the  trial  courts,  within  the  additional  period  of 


94  Practice  in  Courts  of  Review. 

one  year  to  that  allowed  by  the  statute  of  limita- 
tions, and  as  a  proceeding  by  writ  of  error  is  a  new 
action,  it  would  seem  that  where  a  writ  of  error  has 
been  sued  out  within  the  three  years  from  the  final 
judgment  in  the  action,  and  is  abated,  or  avoided  or 
defeated  for  any  one  of  the  causes  mentioned  in  that 
section,  and  the  time  within  which  such  writ  of  error 
can  ordinarily  be  sued  out  has  expired,  the  section 
will  be  applicable.  No  case,  under  such  section,  has 
as  yet  arisen  in  the  courts  of  review  and  reached  a 
decision.  The  question  can  only  arise  by  an  attempt 
to  bring  a  writ  of  error  in  one  of  the  courts  of  review, 
under  the  provisions  of  that  section,  after  the  expira- 
tion of  the  three  years'  limitation. 

In  criminal  cases  there  does  not  appear  to  be,  by 
statute,  any  limitation  to  the  time  within  which  a  writ 
of  error  to  reverse  a  conviction  for  a  crime  may  be 
brought.  This,  probably,  arises  from  the  fact  that  a 
writ  of  error  in  criminal  cases  is  a  writ  of  right,  and 
is,  usually,  sued  out  very  promptly  by  a  person  con- 
victed of  any  crime,  if  he  believes  that  he  may 
possibly  set  aside  the  conviction.  Another  reason  is 
that  no  lapse  of  time  ought  to  prevent  a  review  and 
reversal  of  an  unjust  conviction  of  crime. 

Procedure  to  Procure  a  Writ  of  Error. 

Sec.  76.  Usually  the  party  who  desires  to  sue  out 
a  writ  of  error,  instead  of  applying  to  the  clerk  of 
the  court  of  review  in  the  first  instance  for  such  writ 


Writ  of  Error.  95 

to  issue,  and  having  it  served  on  the  clerk  of  the 
trial  court,  procures  from  the  latter  a  transcript  of 
the  record  of  the  action  or  proceeding,  which  he  de- 
sires to  have  reviewed  by  the  appellate  court,  and 
files  the  same  in  the  office  of  the  clerk  of  the  court 
of  review.  This  mode  of  procedure  saves  the  cost  of 
service  of  the  writ  of  error  on  the  clerk  of  the  trial 
court,  is  more  convenient,  for  parties  and  attorneys, 
in  cases  determined  in  courts,  which  are  distant  from 
the  seat  of  ofovernment  where  the  courts  of  review 
sit,  and  gives  the  attorney  for  the  plaintiff  in  error 
an  opportunity  to  ascertain  the  correct  names  of  all 
parties  to  the  record  in  the  trial  court. 

When  this  procedure  is  followed,  the  rules  of  the 
Supreme  Court  provide  that:  "Where  a  transcript 
of  the  record,  duly  certified  to  be  full  and  complete, 
has  been  filed  in  the  office  of  the  clerk  of  this  court, 
before  the  issuance  of  a  writ  of  error,  it  shall  not  be 
necessary,  except  in  cases  where  a  supersedeas  may 
be  allowed,  to  deliver  such  writ  to  the  clerk  of  the 
inferior  court ;  but  the  same  may  be  filed  in  the 
office  of  the  clerk  of  this  court,  and  such  transcript, 
so  filed  with  the  clerk  of  this  court,  shall  be  taken 
and  considered  to  be  a  due  return  to  said  writ  of 
error." 

This  procedure  is  the  one  usually  followed  in 
criminal  cases,  as  the  object  in  all  such  cases  is  to 
procure  a  supersedeas.  See  "  Error  in  Criminal 
Cases,"  post. 


96  Practice  in  Courts  of  Review. 

Writ  of  Error  —  Contents. 

Sec.  ']'].  A  writ  of  error  runs  in  the  name  of  the 
people  of  the  State  of  Colorado,  as  prescribed  by  the 
Constitution;  is  issued  out  of  the  court  of  review; 
bears  teste  in  the  name  of  the  chief  justice  of  the 
court  of  review ;  is  signed  by  the  clerk  of  such  court 
and  sealed  with  its  seal,  and  is  directed  to  the  clerk 
of  the  trial  court  in  which  the  action  or  proceeding 
was  had,  which  it  is  sought  to  have  reviewed.^ 

The  Issuance  of  the  Writ  of  Error  is  Neces- 
sary TO  Give  the  Court  of  Review  Juris- 
diction, 

Sec.  78.  The  Supreme  Court  has  repeatedly  held 
that,  in  prosecuting  proceedings  in  error,  it  is  indis- 
pensable that  a  writ  of  error  be  issued,  and  unless  it 
is  issued,  that  the  court  of  review  will  have  no  juris- 
diction of  the  cause.  Parties  cannot  confer  juris- 
diction of  the  subject-matter  by  stipulation  or  consent, 
nor  can  the  court  of  review  review  the  record  of  a 
trial  court  on  a  certified  transcript  thereof,  until  a 
writ  of  error  has  been  issued  in  the  particular  cause. 
The  appellate  court  derives  its  jurisdiction  over  the 
subject-matter  from  the  law,  and  no  law  confers 
jurisdiction  in  such  case.  This,  however,  applies 
only   to    cases   which   are  within  its  appellate  juris- 


1  Const.,  art.  VI,  §  30;  Mills'  Stat.,  chap.  35,  §  970;  rule  i,  Supreme 
Court. 


Service  of  Writ  97 

diction  only.  In  cases  which  are  within  the  original 
jurisdiction  of  the  Supreme  Court,  though  brought 
before  the  court  by  appeal  or  writ  of  error  in  the 
first  instance,  if  the  parties  agree  thereto,  by  sub- 
mitting the  cause  to 'the  court,  as  an  "agreed  case," 
for  its  adjudication,  the  Supreme  Court  will  have 
jurisdiction  to  hear  and  determine  it  without  a  pre- 
vious issuance  of  the  writ  of  error.^ 

Writ  of  Error  —  How  Served. 

Sec.  79.  As  hereinbefore  stated  {ante,  §  76)  the 
writ  of  error,  though  it  is  always  issued  by  the  clerk, 
is  in  many  instances  not  served  on  the  clerk  of  the 
trial  court.  But  there  are  cases  in  which  actual  service 
thereof  is  indispensable.  As  no  statute  prescribes  the 
mode  of  service,  the  common-law  mode  of  serving  it, 
by  reading,  is  that  which  is  necessary.  But  the 
better  mode  is  to  have  the  writ  issued  in  dupli- 
cate, read  the  original  to  the  clerk  and  deliver 
to  him  the  duplicate  ;  then  return  to  the  office  of 
the  clerk  of  the  court  of  review  the  original  with 
a  certificate  of  the  service  indorsed  thereon.  If 
the  transcript  has  not  been  already  delivered  to  the 
plaintiff's  attorney,  the  clerk,  when  transmitting  the 
transcript  of  the  record,  will  accompany  it  with 
the  copy  of  the  writ  of  error,  delivered  to  him,  with 
the  following  indorsement  thereon: 

'  People  V.  Boughton,  5  Colo.  487. 
13 


98  Practice  in  Courts  of  Review. 

"  In  obedience  to  the  command  of  the  7vithin  writ  of  error,  1  do 
hereby  transmit  a  true  and  complete  copy  of  the  record  in  the  cause, 
in  said  tvrit  mentioned,  with  the  original  bill  of  exceptions  therein 
filed,  as  designated  by  the  attorney  for  the  plaintiff  in  error,  by  his 
precipe  duly  filed  in  my  office. 

"  Witness  my  hand  and  the  seal  of  the  "- Court  of county, 

Colorado,  at     my    office  in     said  county,    this  day  of , 

1 8 .  » 

Clerk. 

When  a  supersedeas  is  allowed,  the  writ  of  error 
must  be  served  on  the  clerk  of  the  trial  court,  that  he 
may  not  issue  process  in  execution  of  the  judgment, 
and  if  process  have  been  already  issued,  that  he  may 
recall  the  same.  In  cases  of  a  supersedeas,  the  neces- 
sity of  a  duplicate  writ  of  error  is  apparent,  as  the 
clerk  of  the  trial  court  ought  to  file  the  copy  of  the 
writ,  with  the  indorsement  of  the  supersedeas 
thereon,  in  his  office,  so  that  the  fact  of  the  super- 
sedeas having  been  granted,  may  always  appear  by 
the  files  of  the  cause. 

When  an  execution  or  other  process  for  the  enforce- 
ment of  the  judgment  has  been  issued  from  the  trial 
court,  and  is  in  the  hands  of  the  proper  sheriff  or 
other  proper  officer  for  execution,  the  writ  of  error 
may  be  served  on  the  clerk  of  the  trial  court,  who 
will  thereupon  forthwith  recall  the  same,  or  it  may 
be  served,  under  a  rule  of  the  Supreme  Court,  on 
the  officer  in  whose  hands  it  may  have  been  placed 
for  execution.  Such  service  is  made  by  delivering  to 
such  officer  a  copy  of  the  writ  of  error,  and  of   the 


Service  of  Supersedeas.  99 

indorsement  thereon,  making  the  same  a  supersedeas, 
with  a  certificate  of  the  clerk  of  the  court  of  review, 
or  of  the  trial  court,  to  which  the  writ  of  error  is 
directed,  that  the  copy  served  is  a  true  and  correct 
copy  of  the  writ  of  error  and  of  the  indorsements 
thereon.^ 

In  criminal  cases,  the  punishment  of  which  is  im- 
prisonment in  the  penitentiary,  if  the  convict  have 
been  committed  to  the  State  prison,  the  supersedeas 
will  be  served  on  the  warden  ;  if  he  be  yet  in  cus- 
tody of  the  sheriff  it  will  be  served  on  the  sheriff,  in 
whose  custody  he  is. 

Supersedeas —  How  Procured. 

Sec.  80.  At  common  law  the  defendant,  against 
whom  a  judgment  was  rendered  in  a  court  of  record 
in  a  civil  action,  was  entitled  to  have  a  writ  of  error 
issued  as  a  matter  of  rieht.  The  writ  when  issued 
stayed  all  further  proceedings  on  the  judgment,  until 
the  decision  was  had  on  such  writ  of  error.  The 
plaintiff  in  the  writ  was  not  required  to  give  security 
that  he  would  satisfy  the  judgment,  if  he  failed  in  his 
suit  in  error.  This  was  the  practice  prior  to  the  third 
year  of  James  the  First,  when  it  was  changed  in  this 
respect,  and  the  plaintiff  in  error  was  thereafter  re- 
quired, if  he  sought  to  stay  the  execution  of  the 
judgment,  to  give  bond  conditioned  for  the  satisfac- 

'  Rule  6  of  Supreme  Court. 


loo  Practice  in  Courts  of  Review. 

tion  of  such  judgment,  in  case  he  failed  to  reverse 
the  same  on  error. 

This  common-law  requirement  is  in  force  in  Colo- 
rado by  virtue  of  a  provision  of  the  Code,  which  is 
as  follows : 

"  No  writ  of  error  shall  operate  as  a  sttperscdeas 
unless  the  Supreme  Court,  or,  if  application  be  made 
therefor  in  vacation,  some  justice  of  the  Supreme 
Court,  after  inspecting  a  copy  of  the  record  in  the 
cause,  shall  order  such  writ  to  be  made  a  super- 
sedeas, nor  until  the  party  applying  therefor  shall 
file  a  bond  in  the  office  of  the  clerk  of  the  Supreme 
Court,  with  the  conditions  required  in  cases  of  ap- 
peals, approved  by  the  court  or  justice  allowing  such 
order  for  supersedeas,  or  if  such  order  shall  so  di- 
rect, by  the  clerk  of  some  court  of  record.  The  clerk 
issuingf  such  writ  of  error  shall  indorse  thereon  that 
it  shall  be  a  sjLpersedeas,  and  operate  accordingly."' 

This  provision  applies  only  to  civil  cases.  In  crim- 
inal cases,  the  writ  of  error  and  supersedeas  are  not 
governed  by  the  Code,  but  by  sections  1478  and  1479 
of  Mills'  Statutes  as  part  of  the  Criminal  Code. 
Those  sections  are  practically  a  re-enactment  of  the 
common-law  rule,  as  it  existed  subsequent  to  the 
reign  of  James  the  First,  and  by  statute  made  to  ap- 
ply to  criminal  cases. 

By  statute  also  the  writ  of  error  in  all  cases,  not 
capital,  is  a  writ  of    right,  and   issues  as  of  course, 

'  Code,  §  402. 


How  TO  Obtain  Supersedeas.  ioi 

but  does  not  stay  the  execution  of  the  sentence,  un- 
less superseded  as  is  prescribed  by  the  statute. 

Procedure  to  Obtain  a  Supersedeas. 
Sec.  8i.  The  applicant  for  a  supersedeas  on  a  writ 
of  error,  in  both  civil  and  criminal  cases,  must,  at 
the  time  of  making  such  application,  first  file  the 
transcript  of  the  record  on  which  the  application  is 
made,  with  an  assignment  of  errors  thereon  written, 
or  appended  thereto,  which  transcript  must  be  cer- 
tified by  the  clerk  of  the  trial  court  to  be  complete.^ 
No  formal  motion  in  writing  is  prescribed  by  the 
rules,  but  it  is  the  better  practice  to  make  a  formal 
written  application  and  point  out  in  it  specifically  the 
errors  which  are  assigned,  that  are  deemed  by  the  ap- 
plicant of  sufficient  importance  to  justify  a  super- 
sedeas. By  so  doing  he  will  bring  those  specific 
errors  to  the  attention  of  the  court,  or  justice,  to 
whom  the  application  is  made,  and  secure  a  more 
particular  examination  by  him  of  the  record  in  re- 
lation to  those  errors  as  grounds  for  allowing  a  super- 
sedeas. The  court  or  justice  will  not  usually  require  a 
brief  or  written  argument  in  support  of  the  application, 
though  a  brief  and  argument  may  be  advisable  in 
many  cases.  The  court  or  justice  will  then  take  the 
record  for  examination  on  two  points  only,  the  one, 
whether  the  specific  errors  assigned  are  found  in  the 
record  ;  the  other,  whether  the  errors  found  are   of 

'  Rule  4  of  Supreme   Court. 


I02  Practice  in  Courts  of  Review. 

sufficient   importance,   prima  facie,   to    warrant   the 
granting  of  the  supersedeas. 

In  making  such  examination  the  court  or  justice 
does  not  enter  into  a  detailed  examination,  such  as 
it  does  when  it  passes  upon  the  whole  record  for 
final  hearing. 

If,  upon  such  examination,  the  court  or  justice  is  of 
opinion  that  a  supersedeas  may  be  granted,  an  order 
is  then  entered,  allowing  such  supersedeas,  prescrib- 
ing the  penalty  of  the  bond  to  be  given  by  the  ap- 
plicant and  designating  by  whom  the  same  may  be 
approved.  The  plaintiff  in  error  must  then  prepare 
his  supersedeas  bond  in  the  sum  required  by  the 
order  and  present  it  to  the  person  designated  for 
approval.  It  can  be  approved  by  no  other  person, 
unless  it  be  by  the  court  or  a  justice  thereof,  or 
by  some  other  person  designated  by  them  by  a 
subsequent  order  made  for  that  purpose. 

It  is  not  unusual  for  the  courts  of  review  when 
allowing  a  supersedeas  to  direct  that  the  bond  be  ap- 
proved by  the  clerk  of  the  trial  court,  or  by  a  clerk 
of  a  District  Court  or  a  County  Court  of  the  county 
in  which  the  plaintiff  in  error  or  his  sureties  reside. 
By  making  such  order  the  court  enables  a  plaintiff  in 
error  to  give  adequate  security  from  among  his 
friends  in  the  county  of  his  residence,  when  he 
resides  in  a  distant  county  of  the  State,  which 
he  mieht  be  unable  to  give,  if  it  required  the 
security  to  be  approved  by  the  clerk  of  the  court 


Bond  on  Supersedeas.  103 

of  review,  or  one  of  its  justices.  It  is  also  a  matter 
of  prudence  that  the  sureties  be  approved  by  the 
clerk  of  some  court,  at  or  near  the  residence  of  the 
sureties  as  the  justices  and  clerks  of  the  appellate 
courts  would  in  many  instances  be  unable  to  satisfy 
themselves  as  to  the  responsibility  of  the  persons 
offered  as  sureties  in  cases  where  they  are  residents 
of  distant  counties  of  the  State. 

The  clerk  who  is  designated  to  approve  the  bond 
is  required  "  to  use  due  diligence  in  ascertaining  the 
responsibility  of  the  person  becoming  surety,  and  to 
require  each  of  the  sureties  to  accompany  the  same 
with  an  affidavit  that  he  is  worth  the  sum  specified 
in  the  undertaking,  over  and  above  his  just  debts  and 
liabilities,  in  property  not  exempted  by  law  from  ex- 
ecution. Provided,  that  when  the  amount  specified 
in  the  undertakinof  exceeds  one  thousand  dollars  and 
there  are  more  than  two  sureties  thereon,  they  may 
state  in  their  affidavits  that  they  are  severally  worth 
amounts  less  than  that  expressed  in  the  undertaking, 
if  the  whole  amount  be  equivalent  to  the  sum  speci- 
fied in  the  undertaking.^ 

When  the  bond  is  properly  executed  and  approved, 
it  is  then  to  be  delivered  to  the  clerk  of  the  court  of 
review,  to  be  by  him  filed  with  the  other  papers  in 
the  cause.  It  has  been  held  by  the  Supreme  Court 
of  Illinois,  that  if  the  bond  be  merely  "lodged"  in 
the  office  of  the  clerk,  but  not  indorsed  "filed,"  it  is 


'  Code,  §  421. 


104  Practice  in  Courts  of  Review. 

not  a  part  of  the  record.  But  courts  now  generally 
hold,  that  if  the  paper  be  delivered  to  the  clerk  for 
the  purpose  of  being  made  a  part  of  the  files  of  the 
cause,  the  clerk  being  notified  of  the  purpose  for 
which  it  is  placed  in  his  custody,  such  deposit  will 
be  held  to  be  a  filing,  within  the  intent  of  the  law. 
The  indorsement  is  held  to  be  merely  evidence  of 
the  time  at  which  it  was  filed.^  It  has  been  held  in 
one  case  in  Minnesota  that  the  delivery  to  the  clerk 
must  be  at  the  clerk's  office,  and  that  a  delivery  to 
him  at  any  other  place  does  not  impose  on  him  the 
duty  of  carrying  it  to  his  office  and  there  filing  it.^ 

Where  the  bond  is  ordered  to  be  approved  by  the 
clerk  of  a  District  or  County  Court,  the  court  will 
take  judicial  notice  of  the  signature  of  such  clerk, 
and  no  proof  of  his  official  character  is  required,  un- 
less it  be  questioned  by  affidavit,  showing  that  the 
person  who  approved  the  bond  was  not,  at  the  time 
of  approving  the  same,  the  clerk  of  such  court,  or  his 
authorized  deputy. 

The  clerk  upon  filing  the  bond  will  then  indorse 
on  the  writ  of  error  the  following  words  : 

"A  transcript  of  the  record  in  this  cause  having 
been  filed  in  my  office,  with  an  order  indorsed  thereon 
that  the  writ  of  error  herein   be  made  a  supersedeas 

'  Eldred  v.  Mallov.  2  Colo.  2T. 

'  Bouvier  Law  Diet.,  art.  "  File:"  Read  v.  Acton,  T2o  Mass.  130; 
Hamilton  v.  Beardslee.  51  111.  478;  Treerambo  v.  Mining  Co. ,  57 
Cal.  i;o6;  Gorham  v.  Summers,  2;  Minn.  81;  Appleton  Mill  Co.  v. 
Warder  et  al.  (Minn.),  43  N.  W.  R.  791. 


Form  of  Bond.  105 

according  to  law,  this  writ  of  error  is,  therefore,  made 
a  supersedeas  and  shall  operate  accordingly,"  which 
indorsement  is  then  signed  by  such  clerk,  and  the 
writ  then  delivered  to  the  plaintiff  in  error  or  his  at- 
torney, for  the  purpose  of  having  it  properly  served. 
The  same  indorsement  is  made  in  both  civil  and 
criminal  cases,  when  a  supersedeas  is  ordered. 

Form  of  Supersedeas  Bond. 

OEC.  82.  J  Kmno  all   men  by   these  presents,   that   we  ,  as 

principal,  and as  surety,  all  of  the  county  of ,  ///  the  State 

of  Colorado,  are  held  and  firmly  bound  tmto of  the  county  of 

,  /;/  the  State  aforesaid,  in  the  penal  sum  of dollars,  law- 
ful }fioney  of  the    United  States  of  America,  for  the  payment  of 
which,   well  and  truly  to   be  made,   we  bind  ourselves,   our  heirs 
executors  and  administrators,  jointly  and  severally,  firmly  by  these 
presents. 

Witness  our  hands  and  seals,  this day  of ,  A.  D.  18 — . 

The  condition  of  the  above   obligation  is  such  that  whereas  the 

above  bounden did  on  the day  of  ,  A.  D.  i8 —    sue 

out  of  the {here  give  title  of  the  court  of  revieiu),  a  writ  of 

error  to   the Court   of  the   county   of ,  in    the    State   of 

Colorado,  to  remove  therefrom  the  record  of  said  court,  in  a  certain 
action  lately  pending  and  now  determined  in  said  court,  in    7i.<hich 

was  the  plaintiff,  and ivas  the  defendant,  for  review  by 

the  said {fiame  of  court  of  review). 

And  whereas  an  order  has  been  made  by  said  court  making  said 
writ  of  error  a  supersedeas  upon  the  plaintiff  in  error  executing  a 

good  and  sicfficient  bond  in  the  sum  of dollars  with  securities  to 

be  approved  by .- 

No7ii,  therefore,  if  the  above  bounden shall  prosecute  his  said 

writ  of  error  with  effect  and  shall  pay  said  judgment  with  costs ^  in- 
14 


io6  Practice  in  Courts  of  Review. 

terest  and  damages,  in  case  the  judgment  be  affirmed,  then  the  above 
obligation  to  be  void,  otherwise  to  remain  in  full  force  and  effect} 

[seal.] 

[SEAL.J 

Approved  by  me  this day  of ,  A.  D.  i8 — . 


On  the  bond  should  be  indorsed  the  affidavit  of 
justification  of  the  sureties,  as  prescribed   by  Code, 

§  421- 

Effect  of  Supersedeas. 

Sec.  83.  The  effect  of  the  approval  and  filing  of 
the  supersedeas  bond  is  the  same  as  that  of  filing  an 
approved  appeal  bond.  It  authorizes  the  issuance  of 
the  supersedeas  order,  the  effect  of  which  is  to  stay  all 
further  proceedings  in  execution  of  the  judgment  or 
decree  superseded,  and  to  leave  the  proceedings  in 
the  same  state  in  which  they  are  found  at  the  time 
when  the  supersedeas  is  served  on  the  clerk  of 
the  trial  court,  or  on  the  officer  who  has  process 
for  the  execution  of  the  judgment  superseded.  It 
stays  all  further  action  of  the  court  or  officer  from 
the  point  of  time  at  which  the  supersedeas  is  ac- 
tually served.  It  does  not,  however,  affect  any 
action  had  by  the  court,  previously,  in  the  proceed- 
ings or  judgment,  nor  does  it  at  all  prevent  the 
action  of  the  court,  in  amending  or  correcting  its 
record,   or  any   other  action    proper    in    the    cause, 

'  In  criminal  cases  the  condition  of  the  bond  is  different.  See 
Mills'  Ann.  Stats.,  §  1479.  It  must  be  as  prescribed  in  that  section, 
for  his  appearance  to  abide  by  an}'  final  order  made  by  the  court  of 
review  in  his  case. 


Effect  of  Supersedeas.  107 

which  is  not  in  furtherance  of  the  execution  of  the 
judgment.  Thus,  if  an  execution  have  been  issued 
on  the  judgment  and  a  levy  duly  made  on  real  or 
personal  property  thereunder,  the  supersedeas  does 
not  vacate  such  levy,  but  the  officer  can  take  no 
further  steps  to  enforce  the  execution,  though  the 
levy  will  remain  in  full  force  as  a  lien,  until  the 
judgment  is  vacated  in  the  proceeding  in  error.  He 
must  stop  all  proceedings  to  actively  enforce  such 
execution  at  the  point  of  time  at  which  he  is  served 
with  the  sjipersedeas. 

So  if  the  judgment  of  the  trial  court  have  been 
filed,  in  conformity  with  the  statute,  as  a  lien  on  the 
real  estate  of  the  judgment  debtor,  such  lien  remains 
in  full  force,  and  is  neither  vacated  nor  suspended 
in  its  effect  as  a  lien  by  the  supersedeas.  So  an 
attachment  lien,  if  one  have  been  obtained  prior  to 
or  during  the  pendency  of  the  action,  is  not  released 
thereby.  If  an  injunction  be  allowed  by  the  final 
order  or  decree,  such  injunction  is  not  suspended  in 
its  operation  or  vacated  by  the  supersedeas.  So  if  an 
injunction  have  been  dissolved  in  the  action,  the 
supersedeas  will  not  revive  it,  or  put  it  again  into 
effect.  It  has  no  effect  whatever  except  to  preserve 
all  things  in  siatti  quo,  as  they  are  at  the  time  of  its 
service,  and  prevent  further  steps  from  being  taken 
to  enforce  the  judgment,  until  the  final  judgment  on 
the  writ  of  error. ^ 


'  Hurd  V.  People,  14  Colo.  210. 


io8  Practice  in  Courts  of  Review. 

Return  on  Writ  of  Error,  When  Made  a  Super- 
sedeas. 

Sec.  84.  By  rule  of  the  Supreme  Court,  when  a  writ 
of  error,  which  has  been  made  a  supersedeas,  is  served 
on  the  clerk  of  the  trial  court,  he  shall  return  on  it, 
that  "  the  same  has  been  served  on  him,  and  that  it 
appears  by  the  indorsement  thereon  that  a  transcript 
of  the  record  has  been  filed  in  the  office  of  the  clerk 
of  the •  court." 

When  the  supersedeas  is  served  on  the  officer,  who 
has  in  his  hands  for  execution  final  process  issued 
out  of  the  trial  court  on  such  judgment,  he  shall 
discontinue  all  further  proceedings  on  such  process, 
and  shall  return  such  process  into  the  court  out 
of  which  it  issued,  together  with  a  copy  of  the 
writ  of  error,  which  was  served  on  him,  and  he 
shall  set  forth  in  his  return  on  such  final  pro- 
cess what,  if  any  thing,  he  has  done  in  obedience 
thereto.  Hence,  if  he  have  made  a  levy  on  property, 
real  or  personal,  under  such  final  process,  he  must  state 
the  fact  of  such  levy  and  all  other  proceedings  had 
by  him  unto  the  time  of  service  of  the  supersedeas} 

Supersedeas  —  When  Appeal   Dismissed   "With- 
out Prejudice." 
Sec.  85.   Prior  to  the  Code  of  1887  the  dismissal  of 
a  writ  of  error,  or  of  an  appeal,  operated,  without  re- 
gard to  the  ground  upon  which  such  dismissal  was 

'  Rule  6  of  Supreme  Court. 


Dismissal  without  Prejudice.  109 

ordered,  to  only  a  noiisuit  on  the  writ  of  error,  and  a 
discontinuance  of  the  appeal,  unless  the  judgment  of 
the  trial  court  was  expressly  affirmed.^ 

But  by  the  Code  of  1887  the  dismissal  in  the  court 
of  review  of  either  an  appeal  or  a  writ  of  error  be- 
comes an  affirmance  of  the  judgment  of  the  trial 
court,  and  precludes  another  writ  of  error  on  the 
same  judgment,  though  it  be  brought  within  the 
statute  of  limitations,  unless  at  the  time  of  dismiss- 
ing such  appeal  or  writ  of  error  the  dismissal  is 
expressly  declared  by  the  order  of  the  court  to  be 
"without  prejudice  to  another  writ  of  error."  If  the 
order  of  dismissal  do  not  so  recite,  the  dismissal, 
whether  it  be  by  the  plaintiff  in  error  or  the  appel- 
lant, or  by  the  court  on  motion  of  an  adverse  party, 
is  an  affirmance  of  the  judgment  of  the  trial  court. 

When  the  appeal  or  writ  of  error  is  dismissed 
"without  prejudice,"  the  same  party  who  took  the 
appeal  or  writ  of  error,  which  is  so  dismissed,  may 
sue  out  a  new  writ  of  error  on  the  same  judgment  at 
any  time  within  three  years  from  the  rendition  of  the 
judgment  complained  of.  This  will  apply  to  a  writ 
of  error  sued  out  of  the  Court  of  Appeals,  as  well  as 
the  Supreme  Court,  but  it  is  doubtful  if  it  will  apply 
to  a  judgment  rendered  by  the  Court  of  Appeals, 
from  which  an  appeal  or  a  writ  of  error  from  the  Su- 
preme Court  lies.  If  applicable,  the  new  writ  of 
error  must  be  sued  out  within  sixty  days  from  the 

1  Freas  v,  Englebrecht,  3  Colo.  377 ;  Monti  v.  Bishop,  3  Colo.  605. 


no  Practice  IN  Courts  of  Review, 

date  of  the  original  judgment  of  the  Court  of  Ap- 
peals. 

But  if  the  plaintiff  in  error,  whose  appeal  or  writ  of 
error  has  been  dismissed  "  without  prejudice,"  does 
not,  within  thirty  days  from  the  date  of  the  dismissal 
of  his  appeal  or  writ  of  error,  procure  from  the  court 
of  review  a  stipcrsedeas  of  the  original  judgment  on 
his  new  writ  of  error,  the  securities  on  his  appeal 
bond  become  liable  in  the  same  manner  as  if  the 
judgment  of  the  trial  court  had  been  afifirmed  on  the 
dismissed  appeal.  It  is  not  forbidden  to  sue  out  a 
new  writ  of  error  at  any  time  within  the  statute  of 
limitations,  by  this  provision,  but  the  court  of  review 
is  inhibited  from  granting  a  supersedeas  on  such  new 
writ  of  error,  unless  it  be  granted  within  thirty  days 
from  the  date  of  the  dismissal  of  the  original  appeal. 
There  is,  however,  nothing  in  the  provision  which  de- 
prives the  court  of  review  of  the  right  to  review  the 
judgment  of  the  trial  court  at  any  time  within  the 
statute  of  limitations. 

The  practitioner  should,  therefore,  be  careful  : 
First,  when  he  asks  a  dismissal  of  his  appeal  or  writ 
of  error,  by  reason  of  some  error  or  defect  which  is 
not  fatal,  to  ask  that  the  record  entry  show  that  the 
appeal  or  writ  of  error  is  dismissed  without  prejudice. 
"  This  should  be  done  at  the  time  of  the  dismissal, 
as  it  is  doubtful  whether  the  court  has  power  to 
make  such  an  order  at  any  subsequent  time,  though, 
if  the  application   to  dismiss  "  without  prejudice  "  is 


Dismissal  without  Prejudice.  hi 

made  and  the  clerk  inadvertently  omit  to  make  the 
proper  record  entry  the  court  will  order  such  entry  to 
be  made  mtnc  pro  tunc. 

If  the  dismissal  is  made  on  motion  of  the  adverse 
party,  because  a  writ  of  error  does  not  lie,  or  be- 
cause the  writ  has  been  issued  after  the  time  pre- 
scribed by  the  statute  of  limitations,  an  order  of  dis- 
missal without  prejudice  cannot  avail,  and  will  not 
be  made. 

Second.  The  applicant  for  a  supersedeas  must  make 
his  application  to  the  court  or  justice  before  the  ex- 
piration of  thirty  days  from  the  date  of  the  order  of 
dismissal  of  the  appeal.  If  the  application  be  made 
in  time,  the  order  may  be  made  by  the  court  or  jus- 
tice after  that  time,  as  of  the  date  of  the  application. i 

It  may  happen  that  an  appeal  is  allowed  by  the 
trial  court  to  the  Supreme  Court,  in  a  case  where 
the  right  of  appeal  to  the  Supreme  Court  is  in  doubt, 
and  on  motion  in  the  Supreme  Court  it  determines 
that  it  has  not  jurisdiction  of  the  appeal,  and  dismisses 
the  same,  because  the  Court  of  Appeals  is  the  court 
to  which  the  appeal  lies.  In  such  case  the  appellant 
ought  to  ask  that  his  appeal  be  dismissed  "  without 
prejudice  to  his  right  to  a  writ  of  error  from  the 
Court  of  Appeals."  This  would  not  be  a  case  of  an 
absolute  dismissal  because  the  writ  of  error  does  not 
lie  to  the  judgment,  but  because  the  appeal  has  been 
taken  to  the  wrong  court,  and  the   party   ought  in 

'  Code,  §  397  ;  McMichaels  v.  Groves,  14  Colo.  540. 


112  Practice  in  Courts  of  Review. 

justice  to  be  permitted  to  sue  out  the  writ   of  error 
from  the  proper  court 

The  supersedeas  order  of  the  court  or  justice,  if 
made  in  vacation,  is  usually  attached  to  the  tran- 
script of  the  record  of  the  case  which  has  been  de- 
posited in  the  office  of  the  clerk  of  the  court  of  re- 
view. The  order  is  drawn  by  the  justice  of  the  court, 
and  all  indorsements  are  made  by  the  clerk.  With 
the  preparation  of  them  the  attorney  has  no  concern, 
except  to  see  that  they  are  in  proper  form,  and  in 
compliance  with  the  requirements  of  the  rules  of  the 
court.  Hence  we  give  no  forms  of  such  indorse- 
ments herein. 

If  an  appeal  or  writ  of  error  be  dismissed,  and  no 
''  without  prejudice  "  condition  be  attached  thereto, 
by  the  Court  of  Appeals,  the  party  seems  to  be  with- 
out remedy,  if  the  judgment  be  not  one  that  is  re 
viewable  on  writ  of  error  by  the  Supreme  Court,  as 
such  judgment  is  an  affirmance  of  the  original  judg- 
ment of  the  trial  court.  It  may  be,  however,  if 
prompt  application  be  made  to  the  Court  of  Appeals, 
and  a  strong  showing  of  merits  is  made,  that  the 
Court  of  Appeals  will  modify  its  order  of  dismissal. 
But  this  is  purely  discretionary  with  it. 


The  Record.  113 


CHAPTER   IV. 

Of  the  Record. 

Sec.  86.  Record  —  what  constitutes  the. 

87.  Modifications  made  by  the  Code. 

88.  Record  necessary  on  writ  of  error. 

89.  Of  the  transcript  of  the  record. 

90.  Precipe  for  transcript  ;  form. 

91.  Transcript,  form  of. 

92.  Procedure  when  record  is  defective. 

93.  When  record  to  be  filed  on  appeal. 

Record,  what  Constitutes  the. 

Sec.  86.  The  record  of  the  trial  court  is  a  memorial 
in  writing,  made  by  or  under  the  direction  and  super- 
vision of  its  clerk,  of  all  its  proceedings  and  the 
orders  made  in  each  particular  action  or  proceeding 
pending  therein. 

The  record,  at  common  law,  consists  only  of : 
First.  The  process  by  which  the  action  or  proceeding 
is  commenced,  and  the  return  of  service  on  the  de- 
fendant therein  named.  Second.  The  pleadings  of 
the  respective  parties  to  the  actions.  Third.  The 
verdict  of  the  jury,  when  the  cause  was  tried  by  a 
jury.  Fourth.  The  several  orders  made  and  entered 
of  record,  at  the  various  times  when  the  cause  was 
before  the  court  for  consideration  ;  and  Fifth,  \^^  final 
judgment  rendered  by  the  court  in  the  action. 
15 


114  Practice  in  Courts  of  Review. 

The  record  entry  of  the  ''  final  judgment''  must  not 
only  show  that  the  court  made  a  final  adjudication 
of  all  the  material  issues  in  the  litigation,  but  it  must 
also  be  apparent  that  the  entry  is  intended  as  the 
entry  of  a  "final  judgment"  in  the  action  or  pro- 
ceeding.^ 

All  other  matters  occurring  during  the  progress  of 
the  cause  from  its  inception,  by  the  issuance  of  the 
summons  or  other  process  to  bring  the  defendant 
into  court,  to  the  final  judgment,  such  as  papers  filed, 
motions  made  and  decided,  with  the  rulings  of  the 
court  thereon,  objections  to  the  admission,  com- 
petency or  relevancy  of  evidence,  objections  to  the 
admission  of  evidence  or  to  its  exclusion,  objections 
to  instructions  given  or  to  their  modification  or  re- 
fusal to  give,  and  every  matter  not  necessarily  a  part 
of  the  record  proper,  can  only  be  made  a  part  of  the 
record  by  being  incorporated  in  a  bill  of  exceptions, 
duly  signed  and  sealed  by  the  judge  who  tried  the 

cause.~ 

The  Code  requires  that  the  summons  and  plead- 
ings and  all  petitions,  motions,  orders  and  other 
papers  pertaining  to  or  filed  in  the  cause,  be  delivered 
to  the  clerk  of  the  proper  court,  be  by  him  filed  on 
the  day  of  their  receipt  by  him  and  then  be  firmly 
attached   together.     This   is  done  so  as  to  prevent 

'  Alvord  et  al.  v.  McGaughey,  5  Colo.  244 ;  Stevens  v.  Printing 
Co.,  7  Colo.  86. 

« Anderson  v.  Sloan,  i  Colo.  33;  Filley  v.  Cody,  4  Colo.  542;  Wike 
V.  Campbell,  5  Colo.  126. 


The  Record.  115 

any  paper  filed  from  being  lost  or  misplaced.  Such 
has  always  been  the  practice  in  both  civil  and 
criminal  cases. 

The  clerk  further  keeps  a  record,  in  a  well-bound 
book,  of  all  orders  made  by  the  court  in  each  case 
each  day  that  the  court  sits  for  the  transaction  of 
judicial  business,  when  its  judicial  action  is  invoked 
by  one  of  the  parties,  by  motion  or  otherwise,  in  the 
particular  case.     This  book  is  termed  "  The  Journal." 

The  journal  of  each  day's  proceedings,  as  it  is 
entered  of  record,  must  show,  at  its  head,  on  the  first 
day  of  each  term,  the  placita  or  convening  order  of 
the  court.  The  placita  should  show  that  the  court 
was  convened  on  the  day  and  at  the  place  prescribed 
by  law  for  such  court ;  that  the  judge  of  that  court, 
or  some  judge  who  is  lawfully  empowered  to  hold 
that  court,  was  present  and  presiding  therein  ;  that 
the  clerk  of  such  court  was  present  in  person  or  by 
some  authorized  deputy,  and  that  the  sheriff  of  the 
county  in  which  the  court  is  held  was  also  present, 
either  in  person  or  by  an  authorized  deputy.  In 
courts  which  exercise  a  jurisdiction  to  hear  and  try 
informations  and  indictments  for  criminal  offenses,  it 
is  also  customary  to  state  that  the  district  attorney 
of  the  proper  district,  or  his  deputy,  is  also  present. 

The  placita  is  indispensable  to  the  record,  and  its 
absence  will  be  a  ground  for  a  reversal  of  the  judg- 
ment of  the  trial  court.^ 


'  Skinner  v.  Beshoar,  2  Colo.  3S3. 


ii6  Practice  in  Courts  of  Review. 

On  every  day  subsequent  to  the  first  day  on 
which  the  court  judicially  sits,  th.^  placiia  is  usually  in 
the  following  form  : 

"  Court  convened  pursuant  to  adjournment.  Same 
officers  present  as  on  yesterday." 

At  the  close  of  each  day's  proceedings  the  order 
adjourning  the  court  and  the  time  to  which  it  is  ad- 
journed are  entered  on  the  journal.  At  the  close  of 
the  term  the  order  entered  is  usually  entered  thus : 

"  Ordered,  that  the  court  do  now  stand  adjourned 
to  court  in  course." 

In  some  districts  it  is  the  practice  for  the  clerk  of 
the  court,  at  the  opening  of  the  court  each  day,  to 
read  the  journal  entries  of  the  preceding  day's  pro- 
ceedings, so  that  the  attorneys  interested  may  suggest 
necessary  corrections  and  amendments  therein.  This 
practice  obviates  the  necessity  for  applying  to  the 
court  at  some  future  time  to  correct  erroneous 
entries  or  supply  omissions  in  the  record,  and  is  to  be 
commended.  The  record,  after  being  thus  read  and 
the  necessary  corrections  made,  is  in  many  districts 
then  signed  by  the  judge.  In  other  districts  the  judge 
only  signs  the  record  at  the  close  of  each  term  of  the 
court.  The  journal  entries  thus  made,  and  the 
papers  filed  constitute  the  record  of  the  court,  when 
such  papers  are  embodied  in  a  bill  of  exceptions, 
duly  signed  and  sealed. 

The  record,  which  the  appellant  or  plaintiff  in 
error  must  file  in  the  court  of  review,  is  a  transcript 


Contents  of  Record  under  the  Code,        117 

of  this  record,  as  it  exists  in  the  trial  court,  at  com- 
mon law,  which  must  be  certified  to  be  full,  correct 
and  complete,  under  the  hand  and  seal  of  the  clerk 
of  the  trial  court.  This  is  particularly  so  in  criminal 
cases,  as  no  law  has  in  any  way  changed  the  con- 
tents of  the  record,  as  it  is  at  common  law,  in  that 
class  of  cases,  nor  does  the  Code  provision,  authoriz- 
ing the  original  bill  of  exceptions  to  be  taken  to  the 
court  of  review,  apply  to  any  but  civil  cases.  Hence, 
in  criminal  cases,  the  bill  of  exceptions  must  be  tran- 
scribed, and  the  original  retained  in  the  trial  court. 

Modifications  Made  by  the  Code  in  the  Contents 

OF  the  Record. 

Sec.  87.  The  Code  of  1887  has  modified  the  com- 
mon-law rule  as  to  what  shall  constitute  the  record 
proper,  in  civil  cases  only,  and  has  made  to  constitute 
a  part  of  the  record  proper  many  things  which,  under 
the  common-law  rule,  could  have  been  incorporated 
into  the  same  only  by  being  embodied  in  a  bill  of 
exceptions. 

Thus  it  provides  that: 

"When  any  motion  in  writing,  affecting  any  plead- 
ing, or  for  judgment  on  the  pleadings,  shall  be  filed 
and  ruling  had  thereon,  said  motion  and  the  ruling 
and  decision  thereon  shall  be  taken  as  a  part  of  the 
record,  without  making  the  same  such  by  a  bill  of 
exceptions."^ 
'  Code,  §  60. 


ii8  Practice  in  Courts  of  Review. 

No  exceptions  need  be  taken  to  opinions  or  decis- 
ions of  courts  of  record  sustaining  or  overruling  de- 
murrers, or  written  motions  affecting  or  based  on  the 
pleadings,  or  overruling  motions  in  arrest  of  judg- 
ment, motions  for  a  new  trial,  or  for  continuance  of 
causes,  or  giving,  refusing  or  modifying  instructions, 
but  all  such  opinions  and  decisions,  together  with  the 
demurrers,  motions  and  instructions,  shall  be  taken 
as  a  part  of  the  record,  without  being  made  such  by 
a  bill  of  exceptions."^ 

"  All  instructions  offered  by  the  parties,  or  given 
by  the  court,  shall,  with  the  indorsements  thereon 
(which  a  preceding  section  requires  the  judge  to 
make  thereon)  indicating  the  action  of  the  court,  be 
taken  as  a  part  of  the  record  of  the  cause,  without 
being  made  such  by  a  bill  of  exceptions."" 

The  effect  of  the  foregoing  section  of  the  Code  is 
to  make  the  above  matters  a  part  of  the  record  pro- 
per, to  dispense  with  the  necessity  of  incorporating 
them  into  the  record  by  means  of  a  bill  of  exceptions, 
as  was  the  rule  prior  to  their  enactment,  and  to  re- 
quire a  court  of  review  to  review  them  in  the  same 
manner  as  it  reviews  the  record  proper.  The 
decisions  of  the  Supreme  Court,  made  on  records 
and  judgments  rendered  before  the  above  provisions 
became  operative,  are  inapplicable  to  cases  originat- 
ing subsequently  to  the  Code  of  1887. 

'  Code,  §  387. 
2  Code,  §  187. 


Record  Necessary  on  Writ  of  Error.       119 

Record  Necessary  on  Writ  of  Error. 

Sec.  88.  When  the  transcript  of  the  record  is  not 
lodged  in  the  office  of  the  court  of  review,  at  the 
time  the  writ  of  error  is  sued  out,  but  the  writ  is  first 
served  on  the  clerk  of  the  trial  court,  the  mandate  of 
the  writ  requires  such  clerk  to  transmit  to  the  court 
of  review  with  all  convenient  dispatch  a  true  copy  of 
all  the  proceedings  therein,  together  with  a  true  and 
perfect  transcript  of  the  record  and  proceedings  in 
the  suit  aforesaid,  with  all  the  things  concerning  the 
same  distinctly  and  openly,  under  the  seal  of  your 
court,  together  with  this  writ,  etc. 

To  comply  with  this  mandate,  the  clerk  is  re- 
quired to  send  up  only  the  common-law  record,  with 
the  matters  made  a  part  of  the  record  by  the  Code 
of  1887.  He  cannot  make  any  thing  else  a  part  of 
the  record,  by  transcribing  it  in  the  record.  Papers 
not  intrinsically  parts  of  the  record  at  common  law 
or  by  the  Code  do  not  become  a  part  of  the  record 
by  being  incorporated  therein  by  the  clerk.  Hence 
he  should  send  up  no  matters  outside  of  the  record 
proper,  otherwise  than  by  sending  up  the  bill  of  ex- 
ceptions filed  in  the  cause. -^ 

An  illustration  of  what  is  a  defective  record  is 
found  in  the  case  of  Dingle  v.  Swain,  15  Colo.  120. 
Rule  8  of  the  Supreme  Court,  which  is  hereinafter 
set  out,  prescribes  what  the  clerk  shall  certify  to  the 

1  Wike  et  ah.  v.  Campbell,  5  Colo.  126. 


I20  Practice  in  Courts  of  Review. 

court  of  review.     The  rule  requires  the  following  to 
be  certified: 

First,  the  process,  with  the  return  thereon;  Second, 
the  pleadings  of  the  parties;  Third,  the  verdict  in 
jury  trials;  Fourth,  the  judgment  or  decree  of  the 
court  below;  Fifth,  all  motions  specified  in  section 
387,  Civil  Code  of  1887;  Sixth,  the  orders  of  court; 
Seventh,  instructions;  Eighth,  appeal  bond  in  cases 
appealed;  Ninth,  together  with  the  original  bill  of 
exceptions. 

This  rule  is  applicable  equally  to  appeals  and  to 
writs  of  error.  The  rule  permits  the  attorney  of  the 
appellant  or  plaintiff  in  error  to  indicate  by  precipe 
what  of  the  files  of  the  cause  shall  be  inserted  in  the 
transcript. 

But  the  part  of  the  record,  in  which  the  party 
alleges  error  to  exist,  will  in  a  great  measure  regulate 
the  contents  of  the  transcript.  Thus  in  case  of  a 
judgment  by  default,  where  no  appearance  was 
entered  by  defendant,  the  transcript  will  be  com- 
posed of  the  process  and  return  thereon;  the  com- 
plaint filed  in  the  action;  the  entry  of  default,  and 
the  judgment  entry.  If  the  default  be  entered  on 
service  by  publication,  the  record  will  show:  First, 
the  complaint  filed;  Second,  the  summons  issued; 
Third,  the  return  made  by  the  sheriff  of  "  defendant 
not  found,"  which  should  show  that  the  sheriff  re- 
tained the  summons  ten  days  before  he  made  the 
return  thereon,  as  prescribed  by  the  statute;  Fourth, 


Record  —  Contents  of.  121 

the  affidavit  of  non-residence  of  the  defendant; 
Fifth,  the  order  of  pubHcation;  Sixth,  the  summons 
as  pifblished  and  the  proof  thereof;  Seventh,  the 
entry  of  default,  showing  the  expiration  of  ten  days 
after  the  last  publication  of  the  summons,  and  the 
judgment  entry. 

As  a  rule,  where  no  errors  are  assigned  on  the  mat- -^ 
ters  which  do  not  form  a  part  of  the  record,  unless 
made   so  by    bill  of  exceptions,   it   will  not  be  nee-     / 
essary  to  send  up  the  bill  of  exceptions,  though  one 
have  been  filed  in  the  trial  court. 

But  in  directing  what  parts  of  the  record  shall  be 
transcribed,  the  attorney  should  be  careful  to  omit 
nothing  which  has  any  bearing  on  the  errors  assigned, 
or  from  the  absence  of  which  from  the  record  the 
court  of  review  may  presume  against  his  assignment 
of  error. 

Of  the  Transcript  of  the  Record. 

Sec.  89.  The  party  who  desires  to  procure  a  tran- 
script of  the  record  of  the  cause  for  the  purpose  of  su- 
ing out  a  writ  of  error  or  taking  an  appeal  must  file  with 
the  clerk  of  the  trial  court  2l  precipe,  in  which  he  will 
indicate  what  of  the  files  of  the  action  or  proceeding 
he  desires  to  have  incorporated  in  the  transcript. 
The  clerk  will  be  governed  by  this  precipe  in  mak- 
ing up  the  transcript  of  the  record  for  the  court  of 
review.  This  procedure  is  in  conformity  with  the  re- 
quirement of  rule  8  of  the  Supreme  Court,  "but  if 
16 


/ 
/ 


122  Practice  in  Courts  of  Review. 

the  record  so  directed  to  be  made  shall  be  found  by 
the  appellate  court  to  be  insufficient  for  a  proper  con- 
sideration of  the  errors  alleged  to  exist  therein,  it 
shall  be  perfected  at  his  costs  ;  if  unnecessarily  volu- 
minous, the  costs  of  the  unnecessary  parts  shall  be 
taxed  against  him." 

In  compliance  with  the  above  rule  the  party  should 
direct  the  clerk  to  omit  from  the  transcript  all  parts 
of  the  record  which  have  no  bearing  on  the  errors 
assigned.  Thus,  where  the  record  shows  a  full  gen- 
eral appearance  by  the  defendant  to  the  action  in  the 
trial  court,  a  copy  of  the  summons  and  of  the  return  of 
service  thereon  need  not  be  incorporated  into  the 
transcript ;  for  by  an  answer  or  demurrer  being  filed 
to  the  complaint  a  full  general  appearance  is  entered, 
and  it  is  immaterial  whether  any  summons  was  ever 
served  on  the  defendant  or  not.  Thereafter  no  error 
assigned  to  the  sufficiency  of  the  summons  or  of  its 
service  will  be  considered  by  a  court  of  review.^ 

So  if  the  only  errors  assigned  be  found  in  the  record 
proper  as  defined  by  Code,  section  387,  only  those 
parts  of  the  record,  without  which  the  court  of  review 
cannot  properly  investigate  the  errors  assigned,  need 
be  incorporated  in  the  transcript.  If  the  error  be  in 
overruling  a  motion  for  a  continuance,  a  motion  for 
a  new  trial,  etc.,  the  affidavits,  if  any,  used  in  support 
of  such  motions,  are  necessarily  to  be  brought  up  by 
a  bill  of  exceptions  ;  for  though  the  Code  does  not 

'  Mining  Co.  v.  Gill,  7  Colo.  100. 


Rule  8  of  Supreme  Court.  123 

make  it  necessary  to  except  to  the  ruling  of  the  court 
on  such  motions,  it  does  not  make  the  affidavits  used 
on  such  motions  a  part  of  the  record,  and  hence  a 
bill  of  exceptions  will  be  indispensable  to  bring  the 
affidavits  before  the  court,  that  it  may  properly  re- 
view the  action  of  the  court  on  such  motion. 

But  if  the  errors  alleged  be  in  the  admission  or  re- 
jection of  evidence,  the  allowing  or  overruling  of 
motions,  which  are  not  a  part  of  the  record  by  sec- 
tion 387,  and  other  matters  and  rulings  during  the 
progress  of  the  trial,  if  the  matters  and  rulings  have 
not  been  made  a  part  of  the  record  by  a  bill  of  excep- 
tions, the  party  cannot  require  the  clerk  to  send 
them  to  the  court  of  review,  by  incorporating  them 
in  the  transcript. 

Subject  to  the  preceding  suggestions  the  eighth 
rule  of  the  Supreme  Court  should  be  followed  as 
near  as  may  be,  according  to  the  facts  of  the  case. 

The  rule  is  as  follows  : 

"  Clerks  of  inferior  courts,  in  making  up  an  au- 
thenticated copy  of  the  record  in  civil  cases,  shall 
certify  to  this  court.  First,  a  copy  of  the  process,  with 
the  return  thereon  ;  Second,  the  pleadings  of  the 
respective  parties  ;  Third,  the  verdict  of  the  jury  ; 
Fourth,  the  judgment  or  decree  of  the  court  below  ; 
Fifth,  all  written  motions,  affecting  or  based  on  the 
pleadings  ;  motions  for  new  trials,  or  for  continuances, 
and  the  decisions  thereon,  with  the  decisions  men- 
tioned in  section  387  of  the  Code  of  1887;  Sixth,  the 


124  Practice  in  Courts  of  Review. 

orders  of  the  court ;  Seventh,  the  instructions ;  Eighth, 
the  appeal  bond,  when  the  case  is  appealed ;  Ninth, 
the  original  bill  of  exceptions. 

The  original  appeal  bond  is  not  to  be  transmitted 
to  the  court  of  review,  but  is  to  be  retained  on  file  in 
the  trial  court,  and  a  copy  of  it  sent  up  in  the  tran- 
script.^ 

Each  folio  of  one  hundred  words  in  the  tran- 
script must  be  numbered  on  the  margin  thereof. 

Rule  9  further  prescribes  that : 

"The  proceedings  be  arranged  in  the  transcript  in 
chronological  order,"  that  is,  in  the  order  in  which 
the  papers  were  filed  in  the  clerk's  office,  and  the 
orders  and  rulings  of  the  court  were  made  in  the  pro- 
ceedinor  or  action. 

Precipe  for  Transcript  —  Form. 
Sec.  90.  The  precipe  for  a  transcript  may  be  in  the 
form  following : 


'  j-^^. 


State  of  Colorado 

County, 

In  the Court  of , county,  to  the Term  thereof y 

A.  D.  18—. 


A B ,  Plaintiff, 

vs. 
C D ,  Defendant. 


The  clerk  of  said  court  7vill  make  up  an  authenticated  transcript 
of  the   record  of  the   above-entitled  action    {or  proceeding)   lately 

*  Metzler  v.  James.  9  Colo.  117. 


Transcript  —  Form.  125 

pending  in  said  court,  at  the  above-mentioned  term  thereof,  and  in 
said  transcript  will  insert  : 

{Here  designate  the  several  parts  of  the  record  as  poitited  out  in 
sections  88  and  89,  ante.) 

Attorney  for . 


A  careful  observance  of  the  suggestions  made 
above,  in  sections  Z'^  and  89,  will  enable  the  attorney 
to  include  in  the  transcript  all  that  is  necessary  to  a 
due  consideration  of  his  appeal  or  writ  of  error,  and 
at  the  same  time  prevent  his  record  from  being  un- 
necessarily voluminous. 

In  criminal  cases  the  transcript  must  be  made  up 
as  at  common  law,  since  no  change  has  been  made 
by  the  Criminal  Code  in  the  matters  constituting  the 
record  and  the  Civil  Code  provisions  do  not  apply 
to  criminal  procedure. 

Transcript  —  Form. 

Sec.  91.  The  first  indispensable  requisite  of  the 
transcript  is  the  placita,  to  which  reference  has 
already  been  made  herein  (§  86,  page  1 14,  ante). 

The  transcript  usually  is  in  form  as  follows  : 

Transcript 

of  proceedings  lately  had  in  the Court  of county,  in  the 

State  of  Colorado,  in  a  certain  civil  action  therein  pending,  in  which 

was  the  plaintiff  and zuas  the  defe7idant,  at  a  regular 

term  thereof,  begun  and  held  at  the  court-house  in  the  city  {or  town) 
of ,  /;/  said  county,  on  the day  of ,  A.  D.  i8 — ,  that 


126  Practice  in  Courts  of  Review. 

being  the day  of ,  A.  D.  i8 — .  {Here  state  the  day  ap- 
pointed by  law,  as  the  first  Monday,  etc.,  for  the  commeiuejnent  of  the 
term  of  the  court.) 

Be  it  remembered,  that  on  the day  of ,  1 8 — ,  plaintiff 

filed  ill  the  office  of  the  clerk  of  the Court  ivithin  and  for  the 

county  and  State  aforesaid,  a  summons  in  writing,  which  is  in  words 
and  figures  as  follotvs,  to-wit :  {Here  copy  summons  verbatim),  upon 
which  summons  is  indorsed  a  certificate  of  the  service  thereof,  which 
is  in  words  and  figures  as  follows,  to-wit :  {Copy  certificate  of  ser- 
vice verbatim),  which  said  certificate  of  service  and  summons  were 
duly  indorsed : 

''''Filed  this day,  etc."     {Copy  the  filing  as  it  is  on  the  su7n~ 

mans  verbatim.) 

Also  on  the  same  day  plaintiff  filed  his  cojnplaiiit  in  writing,  which 
is  in  words  and  figures  as  follows,  to-wit :  {Here  copy  the  complaint 
verbatim),  then  give  the  filing  thereofi,  in  the  same  manner  as  above 
shown  on  the  summons. 

Every  paper  required  to  be  included  in  the  tran- 
script should  be  copied  verbatim,  with  the  file  in- 
dorsements thereon,  in  the  order  in  which  they  were 
severally  filed.  This  constitutes  the  record  proper. 
In  it  should  be  inserted  nothing  that  properly  be- 
longs to  the  bill  of  exceptions.  Then  will  follow  the 
orders  made  by  the  court,  as  found  entered  on  the 
journal,  in  like  chronological  order. 

After  the  orders  of  the  court  will  be  a  copy  of  the 
appeal  bond,  if  the  case  is  taken  to  the  court  of  re- 
view by  appeal,  and  the  original  bill  of  exceptions, 
except  in  criminal  cases,  in  which  the  bill  of  excep- 
tions is  sent  up  by  copy,  and  the  original  is  retained 
in  the  trial  court.     To  this  transcript  must  be  affixed 


Transcript.  127 

a  certificate  of  the  clerk  of  the  trial  court,  under  the 
hand  of  the  clerk  and  seal  of  the  court,  that  the  fore- 
going is  a  true,  full  and  complete  transcript  of  the 
record  and  proceedings  had  and  done  in  said  cause 
as  they  appear  from  the  files  and  record  of  said  cause, 
now  in  said  trial  court. 

This  transcript  is  the  only  evidence  of  the  proceed- 
ings of  the  trial  court,  to  which  the  court  of  review  can 
look  for  information  as  to  what  was  done  or  ordered 
by  the  trial  court  in  that  cause.  If  a  conflict  is 
found  between  the  statement  of  the  record  proper, 
and  a  statement  of  the  same  matter  in  the  bill  of  ex- 
ceptions, the  statement  of  the  record  will  control, 
since  the  record  can  never  be  qualified  or  varied  by 
the  bill  of  exceptions.^ 

So  deficiencies  in  the  transcript  of  the  record  can- 
not be  supplied  in  the  court  of  review  by  affidavits. 
If  such  exist  they  can  only  be  supplied  by  a  supple- 
mental transcript,  or  a  suggestion  of  the  diminution 
of  the  record.^ 

Care  should  be  taken  to  see  that  the  transcript  of 
the  record,  which  is  obtained  from  the  clerk  of  the 
trial  court  for  the  purpose  of  being  filed  in  the  court 
of  review  to  obtain  a  writ  of  error  thereon,  is  properly 
authenticated.  This  means  that  the  certificate  is  to 
the  effect  that  "  the  transcript  is  a  full  and  complete 
transcript  of  the  original  record  as  it  remains  in  the 

'  Kirkpatrick  v.  Wheeler,  8  Colo.  414. 
^  Barndollar  v.  Patton,  5  Colo.  29. 


128  Practice  in  Courts  of  Review. 

trial  court ;  "  that  the  name  of  the  clerk  is  thereto  sub- 
scribed by  himself  or  his  authorized  deputy;  and 
that  the  bill  of  exceptions,  if  there  be  one  in  the  case, 
is  not  only  signed  by  the  judge,  but  also  that  his  pri- 
vate seal,  that  is  a  scroll,  is  affixed  to  his  signature 
in  the  original  bill,  v^hich  in  civil  cases  accompanies 
the  transcript.  The  cases  are  numerous  both  in  the 
Supreme  Court  of  Colorado,  and  in  that  of  Illinois, 
wherein  a  bill  of  exceptions  has  been  disregarded  by 
the  court  for  want  of  a  seal  to  the  judge's  name 
signed  thereto. 

The  absence  of  a  sufficient  certificate,  or  of  the 
clerk's  signature,  or  of  the  court  seal,  or  of  a  scroll  to 
the  judge's  name  to  the  bill  of  exceptions,  has  in 
numerous  cases  made  the  appeal  or  writ  of  error  inef- 
fective. 

The  transcript  of  the  record  is  that  upon  which  the 
decision  of  the  court  of  review  must  be  made.  It 
can  determine  no  matters  outside  of  the  record  as 
filed  therein.^  Hence  if  the  transcript  be  deficient  in 
any  thing  requisite  to  enable  the  reviewing  court  to 
pass  properly  on  the  real  questions  at  issue,  it  must 
first  be  determined  how  the  deficiency  was  occasioned. 
If  the  omitted  order  have  been  made  by  the  court, 
but  inadvertently  omitted  by  the  clerk  from  the  tran- 
script, a  supplemental  transcript  may  be  procured 
and,  on  leave  obtained,  be  filed  in  the  court  of  review. 
If  through   inadvertence   the    order    made   was    not 


'  Clark  V.  Tabor  et  ah.,  14  Colo.  434. 


Defective  Record.  129 

entered  of  record  in  the  trial  court,  application  will 
have  to  be  made  to  the  trial  court  for  an  order  that 
the  omitted  order  be  made  nunc  pro  tunc.  The 
party  should  then  apply  to  the  court  of  review  for  a 
stay  of  proceedings  in  that  court,  until  application 
can  be  made  to  the  trial  court  for  the  order  nunc  pro 
tunc,  and  a  supplemental  transcript,  supplying  the 
deficiency,  can  be  obtained  and  presented  to  the  court 
of  review.  A  motion  will  be  granted  in  such  case  on 
a  proper  showing  of  the  materiality  of  the  omitted 
matters  to  a  correct  decision.  So  if  the  record  trans- 
mitted incorrectly  state  the  facts  as  they  occurred  in 
the  trial  court,  leave  to  apply  to  the  trial  court  for  a 
correction  of  its  record  may  be  obtained,  and  a  con- 
tinuance had  until  such  amendment  is  made  by  the 
court  below,  and  a  certified  transcript  of  such  amend- 
ment be  brought  to  the  court  of  review  as  a  supple- 
mental transcript,  and  leave  asked  to  file  it^ 

Procedure  where  Record  is  Defective. 
Sec.  92.  In  cases  of  appeals  where  the  statute  re- 
quires the  transcript  to  be  filed  on  or  before  a  certain 
day  of  the  next  succeeding  term  of  the  court  of  re- 
view, it  will  sometimes  be  found  that  the  transcript 
is  defective,  and  to  correct  such  defects  an  applica- 
tion to  the  trial  court  becomes  indispensable.  This, 
however,  will  not  excuse  the  appellant  from  comply- 
ing   with   the   requirement  to   file   it.     The   correct 

'  Pleyte  v.  Pleyte,  15  Colo.  44. 
17 


I30  Practice  in  Courts  of  Review. 

practice  in  such  a  case  is  to  file  the  copy  of  the 
record,  in  as  complete  a  form  as  it  can  then  be  had, 
without  the  action  of  the  trial  court,  unless  the  trial 
court  be  then  sitting  and  be  able  to  make  the  requi- 
site corrections  before  the  record  must  by  law  be 
filed  in  the  court  of  review.  If  the  trial  court  be 
sitting,  application  should  at  once,  on  discovering  the 
errors  or  defects,  be  made  to  it  and  their  correction 
be  applied  for  to  it.  If  this  be  done  before  the 
time  for  filing  the  record  in  the  court  of  review 
arrives,  no  procedure  is  necessary  in  the  court  of 
review. 

But  if  there  be  not  time  to  procure  the  required 
corrections  in  the  trial  court,  on  filing  the  imperfect 
record  a  suggestion  of  diminution  and  a  writ  of 
certiorari,  or  leave  to  apply  to  the  trial  court  for  an 
amendment  of  its  record,  must  be  asked  of  the  court 
of  review.  The  court  will  take  judicial  notice  of  the 
regular  sitting  of  the  trial  court  next  ensuing,  and  if 
satisfied  that  the  postponement  will  promote  the 
interests  of  justice  and  enable  it  to  render  a  proper 
decision  of  the  case,  it  will  ordinarily  grant  the  post- 
ponement. But  if  on  examination  of  the  record  filed 
it  will  see  that  the  corrections  or  amendments  desired 
will  have  no  effect  upon  the  decision,  it  will  deny  the 
application  and  require  the  cause  to  follow  its 
ordinary  course  in  that  court. 


Record  when  to  be  Filed  on  Appeals.       131 

Record  when  to  be  Filed  on  Appeals. 

Sec.  93.  The  Code  requires  that  "  an  authenticated 
copy  of  the  record  of  the  judgment  or  decree  shall 
be  filed  on  or  before  the  third  day  of  the  next  term 

of  the  Supreme  Court  ,  unless  further  time 

shall  have  been  granted  by  the  Supreme  Court  for 
good  cause  shown." 

If,  therefore,  for  any  good  cause,  further  time  is 
desired  by  the  appellant,  within  which  he  may  be 
permitted  to  file  the  record,  the  application  must  be 
made  to  the  court  of  review  for  such  further  time 
prior  to  the  expiration  of  the  time  prescribed  by  the 
statute.  Good  cause  must  be  shown  for  the  granting 
of  such  application,  by  affidavits,  or  other  proof 
satisfactory  to  the  court.  An  application  for  further 
time,  made  after  the  statutory  period  has  elapsed, 
will,  ordinarily,  be  entertained  only  in  cases  of  great 
importance  and  emergency,  since  by  permitting  the 
prescribed  time  to  elapse  without  action,  the  adverse 
party  becomes  entitled  to  a  dismissal  of  the  appeal, 
which,  if  not  made  "without  prejudice,"  is  an  affirm- 
ance of  the  judgment  of  the  trial  court. 

The  party  making  the  application  for  further  time 
should  file  his  motion  in  the  court  of  review  before 
the  expiration  of  the  time  prescribed,  with  such 
affidavits  as  he  may  have  to  present,  and,  if  court  be 
in  session,  call  the  attention  of  the  court  thereto, 
that  proceedings  by  the  adverse  party  may  be  arrested 


132  Practice  in  Courts  of  Review. 

until  the  motion  is  determined  by  the  court.  If  court 
be  not  in  session,  the  proper  course  will  be  to  file  the 
motion  and  affidavits,  and  at  the  earliest  practicable 
period  call  the  attention  of  the  court  thereto.  A 
motion  which  is  merely  filed  does  not  necessarily 
stay  proceedings  unless  such  stay  is  ordered  by  the 
court.  Notice  of  the  motion  should  also  be  served 
on  the  adverse  party,  since  he  is  in  court  by  virtue 
of  the  appeal,  though  he  be  the  appellee. 


Exceptions  to  the  Rulings  of  the  Court.    133 


CHAPTER  V. 
Exceptions  and  Bills  of  Exceptions. 

Sec.     94.  Of  exceptions  to  the  rulings  of  the  court. 

95.  What  is  an  exception  .'' 

96.  Exceptions  allowed  by  the  Code. 

97.  When  no  exception  necessary. 

98.  Bill  of  exceptions  in  criminal  cases. 
«  99.  When  exceptions  to  be  taken. 

100.  When  bill  to  be  presented  to  the  judge. 

101.  Duty  of  judge  to  sign  the  bill. 

102.  When  judge  refuses  or  neglects  to  sign. 

103.  When  judge  absent  from  the  State. 

104.  Original  bill  may  be  filed  in  Supreme  Court. 

105.  When  bill  seeks  to  embrace  depositions. 

106.  Original  papers  not  to  be  in  bill. 

107.  Bill  of  exceptions  —  its  contents. 

108.  Some  rulings  as  to  bills  of  exceptions. 

109.  Exception  to  judgment,  when  necessary. 

110.  Bill  of  exceptions — evidence  on  the  trial. 

111.  Objections  to  evidence. 

112.  Of  procuring  an  amended  bill. 

113.  Motion  for  a  new  trial,  when  unnecessary 

Of  Exceptions  to  Rulings  of  the  Court. 
Sec.  94.  Though  the  taking  and  preserving  of  ex- 
ceptions to  the  diverse  rulings  and  decisions  of  the 
trial  court,  made  while  the  trial  of  the  cause  is  in 
progress,  is  properly  a  part  of  the  procedure  of  the 
trial  court,  a  bill  of  exceptions  is  not  infrequently  a 


134  Practice  in  Courts  of  Review, 

most  important  part  of  the  record,  to  be  submitted 
to  the  court  of  review. 

At  the  common  law  nothing  was  subject  to  review 
on  error,  if  it  did  not  constitute  a  part  of  the  record 
proper  of  the  action.  The  court  of  review  would 
not  review  or  pass  upon  any  errors  of  law,  which  had 
been  committed  by  the  trial  court,  in  ruling  on  the 
admissibility  of  evidence,  determining  motions,  or 
any  other  proceedings  had  during  the  progress  of  the 
case  from  the  inception  thereof  until  the  final  judg- 
ment, because  the  matters  so  ruled  upon  formed  no 
part  of  the  record  proper  of  the  cause.  Yet,  in 
numerous  instances,  such  rulings  had  a  material  in- 
fluence on  the  decision  of  the  cause,  and  were  pre- 
judicial to  one  of  the  parties  litigant. 

To  remedy  this  defect  in  the  procedure,  a  law  was 
enacted  in  the  reign  of  Edward  the  First,  by  which, 
when  a  party  objected  to  any  ruling  or  decision  of  the 
court  as  erroneous  in  law,  the  judges  were  required 
to  allow  an  exception  by  a  bill  by  them  sealed,  show- 
ing the  matters  so  excepted  to.  This  is  known  as  the 
bill  of  exceptions,  and  being  signed  and  sealed  by  the 
trial  judge  becomes  a  part  of  the  record  of  the  cause. 
It  is  the  only  means  whereby  every  question  raised 
by  either  party  during  the  trial,  on  matters  deJiors 
the  record  proper,  may  be  brought  up  for  review, 
when  decided  adversely  to  the  party  who  raises  it. 

The  statute  of  Edward  the  First,  being  part  of  the 
common  law,  is  in  force  in  Colorado. 


Exceptions.  135 

But  at  common  law  no  bill  of  exceptions  will  lie  in 
any  criminal  case,  and  hence  the  allowance  of  a  bill 
of  exceptions  in  prosecutions  for  crime  is  the  creature 
of  the  statute.^ 

Under  the  Colorado  Criminal  Code  a  bill  of  ex- 
ceptions may  be  tendered  and  allowed  in  every 
criminal  case. 

What  is  an  Exception. 

Sec.  95.  During  the  progress  of  a  cause  through 
the  trial  court  from  the  filing  of  the  initial  paper  in 
the  cause  to  the  rendering  of  the  final  judgment  in 
that  court,  many  questions  of  law  will  arise,  at  its 
different  stages,  upon  which  the  court  will  be  asked 
to  make  its  ruling.  Such  ruling  is  based  on  a  motion 
made  by  one  of  the  parties  litigating,  either  orally  or 
in  writing.  If  the  party,  adversely  to  whom  the 
ruling  is  made,  is  not  satisfied  with  such  ruling,  and 
desire  to  make  known  to  the  court  that  he  does  not 
acquiesce  in  the  correctness  of  the  decision,  he  an- 
nounces to  the  court  that  fact  by  asking  that  his  ex- 
ception to  the  ruling  be  noted  and  reserved  on  the 
minutes  of  the  court.  The  principle  on  which  such 
action  is  taken  is  that,  unless  he  excepts  at  the 
proper  time,  he  will  be  held  to  acquiesce  in  the  cor- 
rectness of  the  ruling,  and  however  erroneous  it  may 
be,  he  will  be  precluded  from  thereafter  raising  an 
objection  thereto  in  the  court  of  review. 

'  Roscoe's  Crim.  Ev.  214;  Russell  on  Crimes,  vol.  2,  p.  725;  Whar- 
ton's PI.  &  Pr.  772. 


136  Practice  in  Courts  of  Review. 

It  will  be  noted  that  in  the  Colorado  practice 
many  points  and  rulings  are  subjects  of  an  exception, 
which  are  usually  treated  as  matters  of  pure  judicial 
discretion  in  other  States,  and  not  subject  to  excep- 
tion, in  their  practice. 

Thus  exceptions  are  allowed  in  cases  of  motions 
for  a  change  of  the  place  of  trial,  of  motions  for  a 
continuance  or  postponement  of  a  trial,  and  in  a  great 
many  other  instances  in  which  the  courts  of  other 
States  do  not  permit  exceptions,  because  such  rulings 
are  held  to  be  purely  discretionary,  and  not  subject 
to  review  in  the  court  of  review,  unless  the  court  has 
grossly  abused  its  discretion  in  the  matter. 

An  exception  is  usually  taken  for  several  distinct 
purposes.  One  object  is,  that  by  calling  the  attention 
of  the  court  to  the  particular  point  of  the  objection  to 
its  ruling,  it  may  more  carefully  consider  it  and 
the  exception  taken  to  it,  and  if,  on  more  mature  con- 
sideration, it  find  its  ruling  to  be  erroneous,  it  can  at 
once  revoke  its  ruling  and  make  a  more  correct  de- 
cision on  that  point. 

The  second  object  of  an  exception  is,  that  the  court 
may  be  called  upon  to  examine  the  point,  when  the 
motion  for  a  new  trial  is  made  and  argued,  and  de- 
termine whether  it  made  an  erroneous  ruling  on  that 
point.  It  will  not  infrequently  happen  that  in  the 
course  of  a  trial  to  a  jury  a  question  is  sprung  upon 
the  court,  which  it  is  necessary  to  determine  on  a 
first  impressionand  without  much  deliberation.     This 


Exceptions.  137 

is  often  the  case  where  the  question  is  raised  for  the 
first  time  in  that  court,  and  the  court  has  not  then  suf- 
ficient time  to  search  for  and  examine  the  decisions  of 
other  courts  bearing  thereon,  or  to  consider  properly 
the  bearings  of  the  point  on  the  issues  being  tried. 
It  is  always  proper  in  such  cases  to  give  the  trial 
court  an  opportunity  to  reconsider  its  rulings,  and 
modify,  reverse  or  sustain  them  after  a  more  careful 
consideration  of  the  whole  case  as  developed  by  the 
trial.  This  is  one  of  the  purposes  for  which  a  motion 
for  a  new  trial  is  made,  and  on  such  a  motion  the 
court  will  more  carefully  consider  the  decisions  made 
by  it  during  the  trial,  and  take  ample  time  to  examine 
the  authorities  and  decisions  bearing  on  the  points 
raised.  This  examination  will  not  infrequently  lead  to 
a  reversal  or  modification  of  the  ruling,  and  if  of  suf- 
ficient importance,  a  new  trial  will  be  granted  by 
reason  thereof. 

The  third  object  of  the  taking  of  an  exception  is 
to  preserve  the  point  for  review  in  the  court  of  re- 
view, if  the  trial  court  refuse  to  change  or  modify  its 
ruling  on  exception  or  motion  for  a  new  trial. 

Exceptions  Allowed  by  the  Code. 

Sec.  96.   The    Code   provides  that  in    civil  cases 

"  Exceptions  taken  to  opinions  and  decisions  of  the 

court  upon  the  trial  of  causes  to  a  jury,  or  in  which 

the  parties  agree  that  both  matters  of  law  and  of  fact 

may  be  tried  by  the  court,  shall  be  deemed  to  have 
18 


138  Practice  in  Courts  of  Review. 

been  properly  taken  and  allowed,  and  the  party  ex- 
cepting may  assign  for  error  before  the  Supreme 
Court  any  decision  or  opinion  so  excepted  to,  whether 
such  exception  relates  to  receiving  improper  or  re- 
jecting proper  testimony,  or  to  the  final  judgment  of 
the  court  upon  the  law  and  the  evidence.  The  ap- 
pellee or  defendant  in  error  may  assign  cross-errors 
in  like  manner  on  the  record  filed  by  the  appellant  or 
plaintiff  in  error,  which  cross-errors  shall  be  heard 
and  the  decision  rendered  thereon  at  the  same  time 
that  the  cause  is  considered  on  the  other  errors.^ 

The  foregoing  provision  is  merely  an  amplification 
of  the  provisions  of  the  common  law  in  relation  to 
bills  of  exceptions. 

By  section  31  of  the  Code  an  exception  may  be 
taken  to  the  ruling  of  the  court  on  an  application  for 
a  change  of  the  place  of  trial  of  the  cause,  which,  un- 
less this  provision  had  been  made,  would  be  con- 
sidered a  matter  of  discretion  and  not  reviewable. 
But  this  provision  is  not  found  in  the  act  providing 
for  changes  of  venue  in  criminal  cases  of  1885,  or  the 
amendment  of  1887,  and  hence  the  granting  or  re- 
fusal of  a  chanofe  of  venue  in  a  criminal  case  is  not  a 
subject  of  exception,  unless  the  discretion  of  the 
court  be  grossly  abused  by  its  action  on  the  applica- 
tion therefor. 

Exceptions  may  be  taken  under  the  Code  to  any 
and  every  ruling  and  decision   of  the  court  upon  a 

»  Code,  §  386. 


Exceptions.  i  39 

question  raised  by  either  party  and  decided  by  the 
court  during  the  trial  of  the  cause. 

When  no  Exception  Necessary  to  be  Taken. 

Sec.  97.  The  object  of  a  bill  of  exceptions  is  to  in- 
corporate in  and  make  a  part  of  the  record  of  the 
particular  cause,  those  particular  rulings  and  de- 
cisions of  the  court,  made  during  the  progress  of  the 
trial,  to  which  a  party  takes  exception  as  both  erro- 
neous in  law,  and  prejudicial  to  his  cause,  which  at 
common  law  would  not  be  a  part  of  the  record. 

Hence,  if  the  alleged  erroneous  ruling  be  the  sus- 
taining of  a  demurrer  to  a  pleading  in  the  action  for 
want  of  facts,  when  the  pleading  is  sufficiently  good 
in  law,  and  states  a  good  cause  of  action  or  defense, 
no  exception  thereto  is  necessary,  as  the  error  in  the 
decision  of  the  court  will  clearly  appear  upon  the 
face  of  the  record  itself.  No  bill  of  exceptions  need 
be  taken  in  such  case  to  preserve  the  objection. 
This  rule  has  also  been  applied  to  the  matters  men- 
tioned in  sections  60,  187  and  387  of  the  Code  of 
1887.  But  though  these  matters  are  not  required  to 
be  incorporated  in  a  bill  of  exceptions  to  make  them 
a  part  of  the  record,  it  will,  however,  be  proper  in  all 
such  cases  to  notify  the  court  of  the  party's  excep- 
tion to  its  ruling  to  prevent  the  inference  which 
might  be  drawn  by  the  court  of  review,  that  the  ' 
party  assented  by  his  silence  to  the  correctness  of 
the    ruling.     It    is    a    maxim    "  qui  tacet,  coiiseiitire 


I40  Practice  in  Courts  of  Review. 

videturT     Justice   to   the  trial  court    also    demands 
that  he  have  the   opportunity  given   him  to  correct 
inadvertent  errors  by  their  being  called  to  his  atten- 
tion  in   apt  time.      It    is    presumed    that   the   court 
would  willingly  correct  the  error,  if  given  the  oppor- 
tunity to  do  so  by   the   party.     This    notification  of 
the  party's  dissent,  by  excepting,  is  peculiarly  proper 
in    cases    of    motions,    determined   on    affidavits,   in 
cases  of    applications    for   a    continuance,    and    like 
motions,  and  in  cases  of  giving,   modifying  and  re- 
fusing instructions.     The  real   purport  of  the  Code 
amendments  seems  merely  to    dispense  with  the  re- 
quirement that  all  such  matters  be  incorporated  into 
a    bill    of   exceptions.      It    is    said   by  the  Supreme 
Court  that,  while  the  formality  of  noting  exceptions 
in  such  cases  is  done  away  with  by  the  Code  provis- 
ion, the   record  should   show  that   by  some   proper 
objection  he  invited  the  trial  court's  attention  to  the 
alleged  error  and  thus  gave   an   opportunity  for  its 
correction  at  the  time.^ 

But  if  the  error  in  the  decision  be  in  a  ruling  on 
the  record,  such  as  a  ruling  on  a  demurrer,  or  on  the 
matters  mentioned  in  section  387  of  the  Code,  no  ex- 
ception is  necessary,  by  the  express  provision  of  that 
section. 


'  Wray  V.  Carpenter,  15  Colo.  274. 


Exceptions.  141 

Bill  of  Exceptions  in  Criminal  Cases. 

Sec.  98.   The  Criminal  Code  provides  : 

"  In  the  trial  of  any  person  or  persons  for  any 
crime  or  misdemeanor,  it  shall  be  the  duty  of  the 
judge  before  whom  such  trial  is  pending,  to  sign  and 
seal  any  bill  of  exceptions  tendered  to  the  court  dur- 
ing the  progress  thereof ;  provided  that  the  truth  of 
the  case  be  truly  stated  in  such  bill  of  exceptions  ;  and 
thereupon  such  bill  of  exceptions  shall,  by  the  clerk 
of  said  court,  be  entered  in  the  record  of  such  trial, 
and  become  to  all  intents  and  purposes  a  part  of  the 
record  thereof."^ 

A  difference  between  the  Civil  Code  provision  and 
that  of  the  Criminal  Code  is  to  be  noted.  In  the 
provision  of  the  Criminal  Code  the  judge  is  not  re- 
quired to  sign  the  bill  of  exceptions  tendered  him, 
unless  the  truth  of  the  case  be  truly  stated  therein. 
But  in  practice  the  same  course  is  followed  in  both 
civil  and  criminal  cases,  and  any  misstatements,  either 
intentional  or  inadvertent,  in  the  bill  as  presented  to 
the  judge,  are  usually  corrected  by  him,  before  he 
siofns  and  seals  the  same. 

The  practice  of  many  States  by  express  enactment 
is  to  require  the  bill  of  exceptions,  when  prepared, 
to  be  presented  to  the  attorney  of  the  adverse  party 
for  examination,  and  the  preparation  of  amendments 
thereto,  if  he  deem  any  amendment  necessary,  and 

•Crim.  Code,  Mills'  Stat  ,  §  477. 


142  Practice  in  Courts  of  Review. 

the  presentation  of  such  amendments  to  the  judge 
within  a  specified  time.  No  such  enactment  exists 
in  Colorado,  but  the  same  practice  is  substantially 
followed,  in  both  civil  and  criminal  cases.  As  a 
sworn  stenographer  is  usually  employed  in  all  courts 
of  record,  to  take  down  stenographically  all  the  pro- 
ceedings of  the  court  in  all  cases,  there  is  usually 
little  difficulty  in  settling  a  bill  of  exceptions,  in  either 
a  civil  or  in  a  criminal  case,  for  the  court  will  take  the 
stenographer's  notes  as  the  safest  criterion  to  deter- 
mine any  dispute  as  to  the  accuracy  of  the  bill.  Ex- 
cept as  hereinbefore  noted,  the  practice  as  to  bills  of 
exceptions  is  the  same  in  both  civil  and  criminal  causes. 

When  Exceptions  to  be  Taken. 

Sec.  99.  To  make  an  exception  available  the  bill 
must  affirmatively  show  that  the  exception  was  prayed 
and  allowed  at  the  time  of  the  making  of  the  decision 
by  the  court.  This  is  in  practice  done  by  the  party  who 
excepts  saying  to  the  judge  :  "  The  court  will  please 
note  an  exception  to  your  honor's  ruling."  The  ste- 
nographer then  makes  a  minute  of  the  ruling  and  of 
the  exception  thereto,  and  when  the  bill  is  prepared 
the  exception  is  embodied  therein  by  a  statement, 
following  the  ruling,  substantially  as  follows  :  "  To 
which  ruline  and  decision  the  defendant  then  and 
there  excepted  and  does  except." 

The  practice  of  some  courts  is  to  take  a  bill  of  ex- 
ceptions each  time  that  a  motion  is  made  in  writing 


Exceptions.  143 

and  heard  and  allowed  or  denied.  But  in  Colorado 
all  exceptions  are  embodied  in  07ie  bill,  unless  it  be 
necessary  to  have  separate  bills  by  reason  of  the 
cause  having  been  heard  at  different  terms  by  differ- 
ent judges.  In  such  case  a  separate  bill,  including 
all  matters  heard  and  determined  by  him,  is  signed 
by  each  judge. ^ 

In  the  case  of  Fechheimer  v.  Trounstine  the  Su- 
preme Court  says  : 

"The  sole  purpose  of  requiring  judicial  authentica- 
tion of  such  bills  is  to  preserve  a  correct  transcript  of 
matters  dehors  the  record  proper  for  use  in  the  court 
of  review.  The  presiding  judge  is  familiar  with  these 
matters,  and  in  most  instances  he  is  the  only  person 
competent  to  determine  impartially  the  accuracy  of 
the  bill.  If  it  should  happen  that  two  different  judges 
presided  during  the  progress  of  the  trial,  there  should 
be  two  bills  of  exceptions  ;  each  judge  signing  and 
sealing  the  one  that  embodies  objections  to  the  par- 
ticular rulings  made  by  himself." 

When  Bill  to  be  Presented  to  the  Judge. 

Sec.  100.  At  the  close  of  the  trial,  it  is  the  set- 
tled practice  for  the  defeated  party  to  ask  and  obtain 
leave  to  prepare  and  tender  his  bill  of  exceptions, 
and  the  court  will  then  fix  a  time  within  which  such 
bill  shall  be  presented  to  him  for  his  authentication 

'  Fechheimer  v.  Trounstiene,  12  Colo.  282;  Empire  L.  &  C.  C.  Co. 
V.  Engley,  14  Colo.  289. 


144  Practice  in  Courts  of  Review. 

thereof.  It  must  be  presented  within  the  time  speci- 
fied, unless  an  extension  of  such  time  is  granted.  In 
relation  to  this  the  Supreme  Court  says : 

"  The  settled  practice  in  this  State  is,  when  the  party 
tenders  his  bill  of  exceptions  within  the  time  fixed 
by  statute  or  order,  and  the  same  be  not  at  once  au- 
thenticated, for  the  judge  to  mark  thereon  the  fact  and 
date  of  such  tender  ;  and  even  though  the  bill  be  not 
actually  signed  or  sealed  until  subsequent  to  the  ex- 
piration of  the  period  fixed,  this  tender  and  indorse- 
ment is  deemed  sufficient  to  protect  his  rights.  The 
reason  for  this  ruling  is  that,  when  the  party  has 
prepared  his  bill  and  tendered  it  to  the  judge, he  has 
performed  his  duty,  and  the  failure  of  the  judge  to 
sign  and  seal  it  would  arise  from  no  fault  on  his 
part." 

In  the  case  of  Swem  v.  Green,  on  a  motion  to 
strike  the  bill  of  exceptions  from  the  files,  because  it 
was  not  filed  within  the  time  prescribed  by  the  trial 
court,  the  order  of  the  court  was  that  "  the  appellant 
have  fifty  days  within  which  to  prepare  his  bill  of  ex- 
ceptions." An  indorsement  by  the  trial  judge 
thereon,  over  his  of^cial  signature,  showed  that  the 
bill  was  presented  to  the  judge  within  the  time  pre- 
scribed, but  he  did  not  sign  it  and  file  it  with  the  clerk 
of  his  court  for  several  months  after  the  time  had  ex- 
pired. It  was  claimed  that  this  indorsement  was  no 
part  of  the  bill,  and  consequently  no  part  of  the  rec- 
ord, of  which  the  court  could  take  notice,  and  that 


Bill  where  Presented.  145 

it  should  be  governed  only  by  the  clerk's  file-mark, 
which  clearly  showed  that  the  bill  was  not  filed  in 
time.  But  the  court  held  that,  though  the  judge's 
indorsement  was  no  part  of  the  bill,  it  was  an  of^cial 
certificate  by  the  judge  that  the  bill  had  been  ten- 
dered to  the  judge  within  the  time  allowed,  and 
should  be  so  regarded  by  the  court  of  review.  So  in 
the  case  of  Gilpin  v.  Gilpin,  on  a  like  motion  to 
strike  the  bill  from  the  files,  it  was  held  that  the  ob- 
jecting party  should  show  that  his  objection  was  true 
as  a  matter  of  fact,  and  if  the  presiding  judge  sign 
the  bill,  it  will  be  presumed,  in  the  absence  of  proof, 
conclusive  of  the  truth  of  the  objection,  that  the  ob- 
jection was  not  true,  and  will  not  be  considered  by 
the  court  of  review.^  In  Swem  v.  Green  the  Supreme 
Court  adopts  the  rulings  of  the  Supreme  Court  of 
Illinois,  in  Underwood  v.  Hossack,  40  111.  98,  that  if 
the  judge  sign  the  bill,  it  will  be  presumed  that  he 
would  not  have  done  so  if  the  bill  had  not  been  pre- 
sented to  him  in  proper  time,  and  the  ruling  of  the 
same  court,  that,  when  a  judge  certified  that  the  bill 
had  not  been  presented  to  him  in  time,  it  was  prop- 
erly stricken  out.^ 

When  a  bill  of  exceptions  has  been  made  or  filed 
under  circumstances  not  authorized  by  law,  the 
proper  practice  is  to  move  first  in  the   trial  court  to 

'Denver  v.  Capelli,  3  Colo.  236;  Swem  v.  Green,  9  Colo.  358; 
Gilpin  V.  Gilpin,  12  Colo.  504;  Fechheimer  v.  Trounstine,  12  Colo. 
283. 

'^  Underwood  v.  Hossack,  40  111.  98  ;  Magill  v.  Brown,  98  111.  235. 

19 


146  Practice  in  Courts  of  Review. 

strike  such  unauthorized  bill  from  the  files  of  that 
court  If  the  motion  be  denied  or  allowed  the  party 
aggrieved  should  take  a  bill  of  exceptions  to  the  de- 
cision of  the  court,  incorporating  therein  the  bill  of 
exceptions  stricken  out  and  all  the  evidence  heard 
by  the  court  in  support  of  the  motion  and  against  it, 
and  this  will  enable  the  court  of  review  to  pass  upon 
the  question  as  to  the  correctness  of  the  decision  of 
the  trial  court  thereon.^ 

It  is  only  when  there  is  no  question  as  to  the  cor- 
rectness of  the  clerk's  file-mark,  as  evidence  of  the 
time  when  the  bill  was  filed,  and  no  indorsement  by 
the  judge  of  its  presentation  to  him  in  due  time, 
within  the  cases  cited  in  section  99,  that  the  appellate 
court  will  strike  the  bill  of  exceptions  from  the  tran- 
script of  the  record.  In  such  a  case  a  motion  to 
strike  it  from  the  transcript  is  made,  before  joining 
in  error. 

Duty  of  Trial  Judge  to  Sign  and  Seal  the  Bill. 

Sec.  ioi.  It  is  made  by  lawtheduty  of  the  trial  judge 
to  sign  and  seal  a  proper  bill  of  exceptions,  when  ten- 
dered to  him  in  proper  time,  in  both  civil  and  crimi- 
nal cases.     The  Code  provides  : 

"  In  all  cases  in  courts  of  record,  where  either  party 
shall  except  to  any  ruling,  decision  or  opinion  of  the 
court,  and  shall  reduce  such  exception  to  writing,  it 
shall  be  the  duty  of  the  judge  to  allow  the  same,  and 

>  Hyde  Park  v.  Dunham,  85  111.  596. 


Duty  of  Judges.  147 

to  sign  and  seal  the  same  at  any  time  during  the  term 
of  court  at  which  such  exceptions  were  taken,  or  at 
any  time  thereafter  to  be  fixed  by  the  court. "^  See 
similar  provision  in  Criminal  Code. 

The  statute  in  civil  cases  specifies  "  during  the 
term  of  court  at  which  such  exceptions  were  taken  '' 
as  the  time  within  which  the  judge  is  obliged  to  sign 
and  seal  the  bill,  if  no  time  after  the  expiration  of 
the  term  be  fixed  by  order  of  the  court. 

Hence  the  party  excepting  has  all  of  the  term  of 
the  court  after  the  decision  excepted  to  is  made,  in 
which  to  prepare  and  tender  his  bill,  without  any  or- 
der of  the  court  in  relation  thereto.  In  counties, 
such  as  Arapahoe,  wherein  the  court  is  almost  con- 
tinuously in  session,  unless  the  case  is  tried  at  or 
near  the  expiration  of  the  term,  it  will  be  unneces- 
sary to  ask  for  time  within  which  to  prepare  the  bill. 
But  if  the  case  is  tried  at  or  near  the  close  of  the 
term,  then  time  should  be  asked,  if  sufficient  time 
within  which  to  prepare  the  bill  cannot  be  had  be- 
fore the  term  ends  by  law.  It  is  when  he  desires 
time  to  be  given  after  the  adjournment  of  the  term 
of  court  that  he  is  required  to  ask  for  a  designation 
of  time  for  filing  the  bill.  The  allowance  of  time  by 
the  court  will  usually  be  construed  as  an  allowance 
of  time,  after  the  expiration  of  the  pending  term, 
especially  in  counties  in  which  the  term  lasts  for 
at  most   one  or  two  weeks.     In  Gomer  v.  Chaffee, 

1  Code,  §  385. 


148  Practice  in  Courts  of  Review. 

where  a  motion  for  a  new  trial  in  a  case  pending  at 
one  term  was  postponed  for  a  hearing  to  the  next 
succeeding  term,  it  was  held  that  a  bill  of  excep- 
tions to  all  matters  of  the  trial  had  at  the  preceding 
term  might  be  properly  allowed  at  the  subsequent 
term,  after  the  decision  of  the  motion  for  the  new 
trial.^ 

It  follows,  therefore,  that  a  bill  of  exceptions  is  not 
necessarily  to  be  signed  and  sealed  at  the  same  term 
at  which  the  decision  is  made,  though  it  is,  perhaps, 
good  practice  to  take  such  bill  each  term,  as  to  mat- 
ters heard  and  determined  in  the  action  at  that  term, 
if  the  cause  is  not  heard  and  finally  determined  by  a 
final  judgment  at  one  and  the  same  term. 

When,  as  is  customary  in  country  districts,  in 
which  the  term  of  court  lasts  only  a  few  days  or 
at  most  a  few  weeks,  time  is  asked,  the  party  should 
be  careful  to  ask  sufficient  time,  from  and  after  a 
specified  date.  This  is  especially  necessary  to  avoid 
the  contingency  of  a  temporary  absence  of  the  judge 
from  his  district,  or  from  the  State,  during  the  time 
given.  The  time  asked  should  be  such  as  will  give 
the  party  ample  time  to  prepare  his  bill  with  due  care, 
and  enable  him  to  present  it  to  the  judge  wherever 
he  may  be  in  his  judicial  district.  It  may  happen 
that  at  the  time  when  the  judge  is  called  upon  to 
sign  and  seal  the  bill,  he  may  be  engaged  in  holding 
court  for  another  judge,  in  a  distant  district  of  the 

•  Gomer  v.  Chaffee,  5  Colo.  383. 


Refusal  to  Sign.  i49 

State,  and  there  is  some  doubt  whether  the  bill  can 
properly  be  signed  and  sealed  outside  of  his  proper 
district. 

When  Trial  Judge  Refuses  or  Neglects  to  Sign. 

Sec.  1 02.  There  are  occasionally  cases  in  which  the 
trial  judge  will  refuse  or  neglect  to  sign  the  bill  of 
exceptions,  though  it  be  presented  to  him  in  proper 
time.  His  reasons  for  refusing  to  sign  it  may  or  may 
not  be  good,  and  may  justify  his  refusal  to  sign  it 
or  not. 

In  a  criminal  case  the  party's  sole  remedy  for  the 
refusal  of  the  judge  to  sign  the  bill  of  exceptions, 
when  he  desires  to  procure  its  signature,  is  by  a 
mandaniiLS  to  the  trial  judge.  It  is  well-settled  law 
that  maudamtcs  lies  to  compel  a  judge  to  sign  and 
seal  a  bill  of  exceptions  in  a  cause  tried  before  him. 
But  in  every  such  case  the  accuracy  of  the  state- 
ments made  in  the  bill  must  ultimately  be  deter- 
mined by  the  judge  himself.  In  a  criminal  case 
the  court,  out  of  which  the  maudamtcs  issues,  can- 
not determine  what  shall  be  the  contents  of  the 
bill,  where  the  accuracy  of  its  statements  is  ques- 
tioned, as  it  is  permitted  to  do  in  a  civil  case  under 
the  Code.  By  the  statute  the  judge  is  not  required 
to  sign  or  seal  any  bill,  unless  "the  truth  of  the  case 
is  fairly  stated  therein."  This  is  the  old  common- 
law  rule  in  civil  cases.  Hence,  if,  in  his  return  to 
the  alternative  writ  of  ma7ida7nus,  the  judge  insists 


150  Practice  in  Courts  of  Review. 

that  the  bill  by  him  signed  is  the  correct  bill,  or  that 
the  bill  he  refuses  to  sign  is  materially  incorrect,  the 
court  of  review  is  powerless  to  require  him  to  sign 
any  other  bill.  But  in  a  civil  case  he  has  two  courses 
open  to  him.  He  may  sue  out  a  writ  of  mandainus 
to  compel  him  to  show  sufficient  cause  for  his  re- 
fusal, or  the  party  may  resort  to  the  following  pro- 
vision of  the  Code,  if  the  case  be  a  civil  cause  : 

"  At  any  time,  when  any  judge  shall  neglect  or  re- 
fuse to  allow  and  sign  and  seal  any  bill  of  exceptions, 
then  it  shall  be  lawful  for  the  suitor  to  make  and  at- 
tach to  such  bill  of  exceptions  the  affidavit  of  two  or 
more  attorneys  of  the  court,  or  other  persons,  who 
were  present  at  the  time  of  the  trial,  and  when  such 
exceptions  were  taken,  stating  that  such  bill  of  excep- 
tions is  correct  and  true ;  and  when  such  bill  of  ex- 
ceptions is  so  allowed  and  proved  by  affidavit,  it 
shall  thereupon  be  filed  by  the  clerk  and  shall  be- 
come a  part  of  the  record  of  the  cause  ;  provided, 
etc."^ 

In  proceeding  under  this  provision  it  is  requisite 
that :  First.  The  judge  must  re/use  or  neglect  to  al- 
low the  bill  of  exceptions,  and  to  sign  and  seal  the 
same  when  presented  to  him  at  the  term  of  court. 
No  provision  is  made  for  a  neglect  or  refusal  to  sign 
and  seal  the  bill  when  presented  to  him  out  of  court, 
though  within  the  time  fixed  by  him  for  the  presen- 
tation of  it  to  him  for  signature  by  him.     Second. 

>  Code.  §  385. 


Proving  by  Affidavit.  151 

The  affidavits  to  the  truth  and  correctness  of  the 
bill  must  be  made  by  two  attorneys  or  other  persons 
who  have  no  connection  with  or  participation  in  the 
case  in  which  they  make  such  affidavits ;  that  is,  they 
must  be  disinterested  persons.  Third.  They  must  be 
persons  who  were  present  in  the  court-room  at  the 
trial,  and  at  the  time  when  the  exceptions  in  the  bill 
stated  were  taken  by  the  party  who  presents  the  bill. 
To  make  such  affidavits  understandingly,  they  must 
have  had  their  attention  particularly  drawn  to  the 
questions  asked  or  the  point  discussed,  to  the  ruling 
or  decision  of  the  court,  and  to  the  exception  taken.^ 
The  section  of  the  Code  further  requires: 
"  Provided  that  when  a  bill  of  exceptions  is  sought 
to  be  preserved  by  affidavits,  the  opposite  party 
shall  have  timely  notice  thereof,  and  may  within  a 
reasonable  time  thereafter  file  counter  affidavits,  and 
the  appellate  court  shall,  on  notice  and  such  proof 
as  may  be  necessary,  determine  and  settle  what  is 
the  true  bill  in  that  behalf." 

From  the  foregoing  section  it  is  clear  that  the 
affidavits  cannot  be  made  by  the  attorneys  who 
were  engaged  in  the  trial  of  the  cause  ;  Second,  that 
the  adverse  party  must  have  timely  notice  of  the  in- 
tention to  authenticate  the  bill  by  affidavits ;  Third, 
that  they  shall  be  furnished  with  copies  of  such  affi- 
davits, so  that  they  may  be  able  to  prepare  counter 

'  Thornley V.Pierce,  lo  Colo.  250;  Meyer  v.  Binkleman,  5  Colo. 
133- 


152  Practice  in  Courts  of  Review. 

affidavits  and  file  the  same  within  a  reasonable  time 
after  the  notice  and  receipt  of  such  affidavits  ;  and 
Fourth,  that  if  counter  affidavits  are  filed,  which  con- 
test the  substantial  allegations  of  the  affidavits,  it  be- 
comes the  duty  of  the«court  of  review  to  settle  the 
bill.  This  is  to  be  done  on  notice  and  motion  by  the 
party  who  seeks  to  authenticate  his  bill  of  excep- 
tions by  affidavits,  and  upon  him  lies  the  burden  of 
proving  his  bill  to  be  correct.  The  Supreme  Court 
has  not  as  yet  had  occasion  to  point  out  the  proper 
procedure  in  such  cases.  It  seems,  however,  that  the 
bill  of  exceptions  should  be  properly  framed  and 
presented  to  the  trial  judge  for  his  signature,  within 
the  term,  and  if  he  refuse  to  sign  the  bill,  that  he  be 
requested  to  indorse  the  fact  of  such  presentation  to 
him,  the  time  of  its  presentation  and  his  grounds  for 
refusing  to  sign  it,  and  sign  such  indorsement.  He 
will  ordinarily  point  out  in  such  indorsement  in  what 
particular  matters  he  deems  the  bill  incorrect.  If  he 
neglect  to  sign  and  seal  the  bill  within  the  time 
allowed  by  his  order,  the  fact  of  its  presentation  to 
him  in  apt  time,  his  detention  of  it  beyond  the  time 
fixed,  and  his  failure  to  sign  and  seal  it  will  be  made 
to  appear  by  affidavit. 

The  party  appealing,  or  taking  the  writ  of  error, 
will  then  petition  the  court  of  review,  by  a  verified 
petition,  for  leave  to  prove  the  truth  of  the  bill  of 
exceptions,  in  those  matters  in  which  the  trial  judge 
claims  it  to  be  incorrect,  by  the  affidavits  of  disin- 


Proving  by  Affidavit.  153 

terested  parties.  Such  parties  should  state  in  their 
affidavits  that  they  were  not  then  and  are  not,  at  the 
time  of  making  such  affidavits,  interested  in  the 
action  in  which  the  bill  of  exceptions  was  tendered, 
or  the  attorneys  for  the  parties  therein  ;  that  their 
attention  was  particularly  called  to  the  matters  ex- 
cepted to,  and  that  to  the  best  of  their  knowledge 
the  evidence  was  offered,  and  rejected  by  the  court, 
etc.,  and  that  an  exception  was  then  properly  asked 
and  reserved.  The  affidavit  should  be  specific  as  to 
the  correctness  of  the  particular  matter,  the  correct- 
ness of  which  the  judge  questions.  The  court  of 
review  is  not,  however,  limited  to  those  affidavits,  and 
may,  if  it  see  fit,  call  for  the  stenographer's  notes  in 
addition  to  the  affidavits.  The  court  will  hear  such 
other  proof  as  it  may  deem  necessary  to  a  proper 
decision  of  the  question  involved. 

Some  Supreme  Courts  hold  that  it  is  in  the  power 
of  the  appellate  court,  when  the  trial  judge  refuses 
to  sign  and  seal  the  bill,  notwithstanding  a  writ  of 
mandavms  duly  served  on  him,  to  order  the  bill  to 
be  considered  as  true,  if  its  correctness  is  not  ques- 
tioned, and  to  have  the  same  effect  in  the  court  of 
review  as  if  it  was  duly  signed  and  sealed.  This 
procedure  is  recognized  in  Illinois,  Alabama,  and 
other  States.  But  there  must  be  no  laches  on  the 
part  of  the  party  who  tenders  the  bill. 

Much  difficulty  has  arisen  in  cases  where,  after  the 
bill  has  been  properly  prepared,  and  presented  to  the 
20 


154  Practice  in  Courts  of  Review. 

trial  judge  for  his  signature,  the  judge  dies,  or 
vacates  his  office  by  reason  of  the  expiration  of  his 
term  of  office.  In  the  former  case  the  only  remedy 
would  seem  to  be  a  new  trial  for  the  party,  as  the 
settling  of  the  bill  being  a  judicial  act,  no  one  is 
competent  to  settle  the  bill  except  the  judge  by 
whom  the  cause  was  tried.  But  in  one  case  in  Penn- 
sylvania the  Supreme  Court  ordered  the  judge's 
minutes  to  be  filed,  on  which  the  bill  of  exceptions 
was  based.  As  courts  of  record  now  are  authorized 
to  employ  official  stenographers  to  make  a  minute  of 
all  the  court's  proceedings  in  the  action,  it  seems 
that  the  stenographic  notes  may  be  used  as  the  basis 
for  determining  the  accuracy  of  the  bill,  not  signed 
by  the  trial  judge  for  the  above  causes. 

As  an  attorney  who  practices  in  courts  of  review 
is  presumed  to  have  sufficient  experience  in  drawing 
affidavits  to  enable  him  to  prepare  a  sufficient  affi- 
davit in  this  case,  we  give  no  form  of  an  affidavit 
here. 

When  Judge  Absent  from  the  State. 

Sec.  103.  It  will  occasionally  happen  that,  during 
the  time  given  for  preparing  the  bill,  the  judge  goes 
out  of  the  State,  or  for  some  other  reason  is  not  ac- 
cessible, so  that  he  can  be  found  for  the  purpose  of 
presenting  the  bill  to  him  for  his  signature  and  seal. 
In  such  case,  if  the  party  have  not  needlessly  post- 
poned the  preparation  of  the  bill,  and  has  been  guilty 


Original  Bill.  155 

of  no  fault  on  his  part,  and  the  judge  is  unexpectedly 
absent  from  the  State,  at  the  time  it  becomes  neces- 
sary to  present  the  bill  to  him,  the  practice  approved 
by  the  Supreme  Court  is  for  the  party  to  deposit  the 
bill  with  the  clerk  of  the  court  wherein  the  cause 
was  tried,  procure  such  clerk  to  indorse  on  such  bill 
the  time  of  its  deposit,  and  then  it  may  be  signed 
and  sealed  by  the  judge  on  his  return  to  his  district. 
The  judge's  absence,  it  is  held,  will  not  prejudice  the 
party's  rights  in  such  case.^ 

Original  Bill  may  be  Filed  in  Appellate  Court. 

Sec.  104.  When  a  bill  of  exceptions  has  been  duly 
prepared  and  authenticated,  as  hereinbefore  pointed 
out,  it  is  then  to  be  filed  with  the  clerk  of  the  trial  court, 
as  a  part  of  the  record  of  that  court  in  the  particular 
cause.  Prior  to  the  Code  of  1887  the  rule  of  prac- 
tice required  that  the  bill  remain  in  the  trial  court, 
and  when  an  appeal  or  a  writ  of  error  was  taken,  that 
it  be  copied  into  the  transcript  of  the  record.  This 
rule  is  yet  in  force  in  criminal  cases.  But  as  in  many 
civil  cases  the  bill  of  exceptions  is  voluminous,  and 
the  copying  of  the  same  entails  great  expense  and  de- 
lay, the  Code  of  1887  provides,  that  in  "all  cases  of 
appeals  and  writs  of  error  from  final  judgments,  the 
original  bill  of  exceptions  may  be  certified  to  the 
Supreme  Court,  without  being  transcribed,"  and 
"  when  a  bill  of  exceptions  duly  signed  is  filed  in  the 
'  Fechheimer  v.  Trounstine,  2  Colo.  283. 


156  Practice  in  Courts  of  Review, 

court  from  which  the  appeal  has  been  taken,  the  same 
may  be  by  the  appellant  filed  in  its  original  form  in 
the  appellate  court.^ 

In  civil  cases,  therefore,  it  is  no  longer  necessary  to 
transcribe  the  original  bill  in  the  transcript  of  the 
record,  on  appeal  or  writ  of  error.  While  it  is  not 
forbidden  to  do  this,  yet  the  practice  is  to  attach  the 
original  bill  to  the  transcript. 

When  Bill  Seeks  to  Embrace  Depositions,  Deeds 

AND  Other  Papers. 

Sec.  105.  The  general  rule  of  practice  is  that  all 
depositions,  deeds  and  papers  offered  in  evidence 
during  the  trial  shall  be  incorporated  in  the  bill  of 
exceptions  at  length.  This  rule  has  been  modified  by 
the  Code  by  the  following  enactment  : 

"When  the  bill  of  exceptions  seeks  to  embrace  de- 
positions the  same  may  be  done  by  reference,  without 
copying  the  same  in  full,  and  the  deposition  so  re- 
ferred to  may  be  transmitted  to  the  appellate  court, 
as  part  of  the  bill  of  exceptions.  Deeds  and  other 
papers  offered  in  evidence  may  be  expressed  in  bills 
of  exceptions  by  stating  their  purport  and  effect,  so  far 
as  pertinent  to  the  decision  to  be  made  by  the  trial 
court,  and  if  the  parties  to  the  action  fail  to  agree 
on  the  essential  parts  of  such  papers,  they  shall  be 
expressed  in  substance  or  at  length,  as  the  judge 
signing  such  bill  shall,  in  his  discretion,  decide."^ 

'  Code,  §§  392,  406.  '  Code,  §  392. 


Depositions  in  Bill.  157 


The  foresfoino:  section  introduces  a  new  rule  and 
dispenses  with  the  former  rule,  which  required  all  de- 
positions, deeds  and  papers  to  be  copied  in  full  into  the 
bill  of  exceptions.  While  it  allows  the  depositions 
to  be  made  part  of  the  bill  by  reference,  and  being 
attached  to  it,  this  provision  is  not  made  applicable 
to  deeds  and  other  papers,  and,  therefore,  they  do  not 
become  a  part  of  the  bill  by  being  attached  to  it. 

Original  Papers  not  to  be  Incorporated  in  Bill. 

Sec.  106.  It  is  the  rule  of  all  courts  of  review  that 
original  papers  shall  not  be  presented  in  the  appellate 
court  by  bill  of  exceptions,  unless  such  original  paper 
cannot  be  exhibited  satisfactorily  by  a  copy  of  it. 
But  under  the  Colorado  practice,  allowing  the  orig- 
inal bill  of  exceptions  to  be  transmitted  to  the  court 
of  review,  if  an  original  paper  be  incorporated  in  the 
original  bill,  filed  in  the  trial  court,  when  such  orig- 
inal bill  is  transmitted  to  the  court  of  review  it  will 
necessarily  include  the  original  papers  included  in  the 
bill.  But  there  may  be  instances  when  an  inspection 
of  an  original  paper,  which  has  been  filed  in  the  trial 
court,  is  necessary  to  enable  the  court  of  review  to 
properly  determine  some  question  raised  by  an  assign- 
ment of  error,  though  such  original  be  not  in  the  bill. 
The  Code  provides : 

"  When  a  review  of  an  original  paper  m  an  action, 
filed  in  the  trial  court,  and  not  incorporated  in  the  bill 
of  exceptions,  may  be  important  to  a  correct  decision 


158  Practice  in  Courts  of  Review. 

of  the  appeal  or  writ  of  error,  the  appellate  court  may 
order  the  clerk  of  the  trial  court  to  transmit  the 
same  to  the  clerk  of  the  appellate  court,  which  he 
shall  do  in  some  safe  manner.  The  clerk  shall  hold 
the  same  subject  to  the  control  of  the  court." 

Bill  of  Exceptions  —  Its  Contents. 

Sec.  107.  A  bill  of  exceptions  is  the  portion  of  the 
record  into  which  a  court  of  review  looks  for  any 
matter  which  is  assigned  for  error,  that  does  not  prop- 
erly pertain  to  what  is  regarded  as  the  record  proper. 
In  it  must  be  found  all  motions,  except  such  as  sec- 
tion 387  of  the  Code  makes  part  of  the  record,  affi- 
davits, bonds,  and  all  papers  offered  in  evidence,  or  to 
which  objection  is  made,  and  the  objection  sustained 
or  overruled,  during  the  progress  of  the  cause,  from 
its  inception  and  the  filing  of  the  first  paper  therein, 
until  its  final  determination.  As  before  said,  matters 
not  intrinsically  a  part  of  the  record  by  common  law 
or  the  Code  cannot  be  brought  to  the  attention  of 
the  appellate  court  by  being  transcribed  in  the  tran- 
script sent  to  the  court  of  review.  The  court  never 
pass  upon  any  matter  dehors  the  record,  unless  pre- 
sented by  a  properly  authenticated  bill  of  exceptions. 
This  is  true  in  equity  as  well  as  in  common-law  ac- 
tions.^ 

>  Code,  §  396. 

"^  Blatchley  et  al.  v.  Coles,  6  Colo.  82 ;  Marshall  S.  M.  Co.  v. 
Kirtley,  8  Colo.  108;  Banks  v.  Hoyt,  11  Colo.  399;  Brink  v. 
Posey,  II  Colo.  521  . 


Contents  of  Bill.  159 

Hence  in  Blatchley  v.  Coles,  on  motion  to  strike 
from  the  files  in  the  Supreme  Court  a  supplemental 
transcript  of  the  record,  in  which  the  evidence  taken 
by  a  referee  in  a  chancery  case  was  brought  to  the 
Supreme  Court  by  a  bill  of  exceptions,  the  Su- 
preme Court  held  that  a  bill  of  exceptions  is  the 
only  mode  provided  by  the  Code,  for  bringing  up  the 
evidence  in  a  chancery  case  as  well  as  in  a  law  case. 
So  in  Mining  Co.  v.  Kirtley  it  was  held  that  evi- 
dence, instructions  and  exceptions  must  be  incorpo- 
rated into  the  record  by  bill  of  exceptions;  and  as  in 
that  case  the  alleged  bill  had  not  been  sealed  by  the 
judge,  it  refused  to  recognize  the  bill  as  a  bill  of  ex- 
ceptions, and  to  pass  upon  the  assignments  of  error 
based  upon  that  bill.  So  in  Banks  v.  Hoyt  it  was 
held  that  objections  to  instructions  rest  on  matters 
dehors  the  record,  and  that  the  instructions  must  be 
incorporated  into  the  record  by  bill  or  they  will 
not  be  considered.  But  it  is  now  otherwise  by 
section  387  of  the  Code.  So  in  Brink  v.  Posey  it 
is  held  that  a  motion  to  strike  out  certain  allega- 
tions in  a  replication,  and  the  action  of  the  court  on 
such  motion  are  not  part  of  the  record  proper.  The 
rule  is,  however,  changed  by  the  Code  in  this  re- 
spect. 

So  it  is  held  that  a  bill  of  particulars  is  no  part  of 
the  record,  and  if  objection  is  made  thereto  for  any 
cause,  the  bill,  objections  and  rulings  of  the  court 
must  be  duly  preserved  in  a  bill  of  exceptions-     There 


i6o  Practice  in  Courts  of  Review. 

are  many  decisions  on  this  point  in  the  reports,  which 
it  is  needless  to  cite  in  extenso} 

Some  Rulings  as  to  Bill  of  Exceptions. 

Sec.  io8.  The  rulings  of  the  trial  court  on  questions 
which  arise  during  the  trial,  and  the  objections  and 
exceptions  thereto  made  by  the  respective  counsel  of 
the  parties,  must  be  preserved  in  a  bill  of  exceptions. 
Unless  so  preserved,  no  ruling  of  the  court,  however 
improper  it  may  be,  as  to  any  matters  which  do  not 
affect  the  pleadings,  or  appear  on  the  face  of  the 
record  proper,  can  be  reviewed  by  the  court  of  re- 
view. Hence  the  clerk's  recital  in  the  transcript  of 
the  record,  that  exception  was  taken  to  the  judgment 
of  the  court,  or  to  the  rulings  and  decisions  of  the 
court  on  motions  for  a  new  trial,  or  in  arrest,  etc.,  or 
to  the  giving,  modification  of  or  refusing  of  instruc- 
tions and  like  matters,  does  not,  in  the  absence  of  a 
bill  of  exceptions,  duly  signed  and  sealed  by  the 
judge,  make  such  matters  a  part  of  the  record,  or 
entitle  such  matters  to  be  reviewed  by  the  court  of 
review.  It  does  no  good  for  the  clerk  to  copy  such 
matters  into  the  record.  Errors  assigned  on  such 
matters,  when  not  found  in  the  bill  of  exceptions,  will 
not  be  considered  by  the  court  of  review.^ 

The  record,  so  far  as  the  bill  is  concerned,  is  made 
by  the  court.      In  signing  the  bill  it  states  only  such 

>  Fryer  v.  Breeze,  i6  Colo.  323. 

-Steffy  V.  People,  130  111.  loi;  Gould  v.  Howe,  127  111.  252;  Har- 
ris V.  People,  130  111.  463. 


Contents  of  Bill.  i6i 

facts  as  have  already  happened  during-  the  progress 
of  the  cause,  within  the  knowledge  of  the  court.  A 
bill  cannot  make  that  a  matter  of  record  which  has 
not  happened,  nor  should  the  court  certify,  even  by 
agreement  of  the  parties,  to  that  which  has  not  taken 
place  within  its  own  knowledge.  So  the  omission  to 
incorporate  certain  papers  into  the  bill  of  exceptions 
cannot  be  remedied  by  a  stipulation  entered  into  by 
the  parties,  after  such  bill  has  been  duly  signed  and 
"sealed  by  the  judge,  that  such  papers  may  be  consid- 
ered as  incorporated  therein,  on  being  attached 
thereto  by  the  clerk.  The  determination  of  what  the 
bill  shall  contain  is  a  judicial  act,  which  the  court  has 
no  power  to  delegate.  The  remedy  in  such  case  is 
by  an  application  to  the  court  to  amend  the  bill,  or 
allow  an  amended  bill  to  be  filed,  including  the 
omitted  matters. 

So  a  stipulation  that  the  stenographer's  notes  shall 
be  treated  as  a  bill  of  exceptions  will  not  avail  to 
make  them  serve  as  a  bill  of  exceptions.^ 

A  bill  of  exceptions  is  held  to  be  a  pleading  of  the 
party  who  frames  the  bill,  not  a  writing  of  the  judge, 
who  signs  and  seals  it,  and  if  the  statements  of  the 
bill  be  open  to  a  charge  of  uncertainty,  ambiguity,  or 
omission  of  any  thing  material  to  maintain  his  as- 
signment of  errors  thereon,  the  bill,  like  all  other 
pleadings,  and  its  allegations,  will  be  construed  most 

'Byrne  v.  Clarke,  31   111.   App.  652;  Schwarze  v.  Spiegel,  41  HI- 

App.'sSS- 

21 


i62  Practice  in  Courts  of  Review. 

strongly  against  the  party  who  presents  it.  In  fram- 
ing the  bill,  therefore,  he  should  be  careful  by  distinct- 
ness of  statement,  and  the  use  of  clear  and  intelligible 
language,  to  make  the  point  of  each  objection  and 
exception  so  clear  as  not  to  be  misunderstood  or 
misconstrued  by  the  court  of  review.^ 

In  theory,  the  party  tendering  a  bill  of  exceptions 
is  bound  to  state  accurately  the  facts  of  the  case 
upon  which  his  exception  is  taken,  with  the  ruling  of 
the  court  excepted  to.  If  his  statement  is  not  cor- 
rect, the  court  may  refuse  to  sign  and  seal  such  bill, 
and  allege  its  material  incorrectness  as  the  ground 
of  such  refusal.  The  court  is  under  no  obligation 
to  revise  and  correct  the  bill,  and  will  examine  it  for 
the  sole  purpose  of  determining  whether  it  is  sub- 
stantially correct.  But  in  ordinary  practice  the 
judges  point  out  the  errors  therein,  and  suggest 
their  correction  by  the  party.  For  this  purpose  also, 
in  some  States,  the  bill  is  required  to  be  submitted 
to  the  adverse  attorney  for  inspection,  and  if  he 
allege  error  therein,  the  judge  is  required  to  deter- 
mine the  correctness  of  the  bill  on  a  hearing  of  ob- 
jections thereto.  The  corrections  ordered  are  then 
made  in  the  bill,  and  the  bill  is  then  signed  and  sealed. 

When  thus  corrected,  and  signed  and  sealed  by 
the  judge,  it  becomes  a  part   of  the  record   of  that 

'Rogers  v.  Hull,  3  Scam.  5;  Garrity  v.  Hamburger  Co.,  136  111. 
513;  Spahn  V.  People,  137  HI-  546;  Monroe  v.  Snow.  33  PI-  App. 
232;  Alley  V.  Limbert,  35  PI.  App.  593;  Brown  v.  Griffin,  40  PI, 
App.  559- 


Presumptions.  163 

particular  cause.  As  the  presumption  is  entertained 
in  favor  of  the  correctness  of  the  decision  of  the 
court  on  every  question  determined  by  it  during  the 
trial,  great  care  must  be  taken  in  preparing  the  bill 
of  exceptions  to  incorporate  therein  every  thing, 
which  may  be  necessary  to  enable  the  court  of  review- 
to  see  not  only  that  the  errors  complained  of  exist, 
but  that  the  rulings  complained  of  were  pn^judicial 
to  the  party  complaining. 

He  should  incorporate  into  his  bill,  but  only  when 
he  intends  to  make  an  assignment  of  error  therein, 
all  motions  made  by  either  party  in  writing,  the 
objections  made  to  the  motion,  the  ruling  of  the 
court,  with  all  affidavits  and  counter  affidavits  used 
at  the  hearing,  all  exceptions  asked  and  allowed,  bills 
of  particulars,  when  furnished,  with  all  motions 
relating  thereto,  the  action  of  the  court  on  such 
motions,  and  exceptions  taken  and  allowed,  all  docu- 
mentary evidence  admitted  or  excluded  on  the  trial, 
with  the  statement  of  the  objections  made,  allowed 
or  overruled  by  the  court,  and  exception  taken  to 
such  ruling ;  the  evidence,  when  the  trial  is  before 
a  referee,  and  all  objections  made  thereto  and  al- 
lowed or  denied  by  the  referee,  with  all  action 
taken  in  the  court  on  return  of  the  referee's  report ; 
all  the  evidence  heard  or  offered  and  excluded,  on  a 
trial  to  the  court  or  jury,  with  the  rulings  of  the 
court  and  exceptions  taken  ;  objections  to  amend- 
ments of  pleadings,  etc.,  and  in  fact  every  thing  that 


164  Practice  in  Courts  of  Review. 

may  be  of  value  to  him  in  maintaining  his  assign- 
ment of  errors. 

If  he  intend  to  contest  his  case  in  the  court  of 
review  upon  the  evidence,  he  will  bear  in  mind  that 
a  court  of  review  will  not  consider  the  evidence 
heard  in  the  trial  court  unless  it  is  brought  before  it 
by  a  bill,  and  that  such  evidence  will  not  be  consid. 
ered  on  a  stipulation  that  the  stenographer's  notes 
of  evidence  are  to  be  treated  as  a  bill  of  exceptions.^ 

But  this  is  only  as  to  stipulations,  which  are  in- 
tended to  take  the  place  of  a  bill  of  exceptions,  and 
are  made  in  the  first  instance  in  the  court  of  review. 
It  does  not  apply  to  stipulations  as  to  what  shall  be 
considered  as  the  evidence  in  the  case,  made  in  the 
trial  court,  and  brought  to  the  court  of  review  by  a 
properly  authenticated  bill. 

But  a  stipulation,  though  made  in  a  trial  court,  that 
the  stenographer's  notes  shall  be  considered  to 
be  the  bill  of  exceptions  is  good  only  as  a  stipulation 
that  the  evidence  as  taken  down  by  him  is  the  evi- 
dence in  the  case,  heard  at  the  trial.  Consent  of 
counsel  will  not  make  it  serve  to  show  exceptions  to 
rulings  of  the  court,  and  their  allowance  by  the  court, 
or  to  show  any  thing  other  than  a  correct  statement 
of  the  evidence  heard  at  the  trial.  If  exceptions  are 
to  be  considered  by  the  court  of  review,  such  a  stipu- 
lation  does   not  require  the  court  to  consider  them, 

'Ross  V.  Duggan,  5  Colo.  105;  MoUandin  v.  RR.  Co.,  3  Colo. 
173  ;  Capelli  v.  Denver,  3  Colo.  235;  McKenzie  v.  Ballard,  14  Colo. 
426. 


Stenographers'  Notes.  165 

and  the  court  will  not  review  such  exceptions,  if  not 
embodied  in  a  bill  of  exceptions,  duly  signed  and 
sealed  by  the  judge  of  the  court. 

When  the  evidence  heard  on  the  trial  is  incorpo- 
rated in  the  bill,  it  must  be  clearly  and  distinctly  stated 
therein  that  ''  all  the  evidence  heard  at  the  trial  of  the 
cause"  is  found  in  the  bill,  or  the  court  of  review  will 
be  precluded  from  reviewing  the  case  on  the  evidence, 
or  passing  upon  the  sufficiency  of  the  evidence  to 
support  the  judgment.^  There  are  numerous  cases 
in  the  reports  of  the  Colorado  Supreme  Court  all  dis- 
tinctly announcing  this  rule.  In  making  such  state- 
ment the  word  "  testimony  "  should  not  be  used  in  lieu 
of  the  word  "evidence."  The  word  "  testimony  "  em- 
braces only  the  statements  of  the  witnesses,  made 
under  oath  or  affirmation,  while  the  word  "  evidence," 
in  the  legal  acceptation  of  the  term,  includes  all  the 
means  by  which  any  matter  of  fact,  the  truth  of  which 
is  submitted  to  investigation,  is  established  or  dis- 
proved. It,  therefore,  includes  both  oral  and  written 
declarations,  and  documentary  proof.  A  bill  of  ex- 
ceptions is  indispensable,  and  must  state  that  it  con- 
tains all  the  evidence,  when  it  is  assigned  for  error 
that  the  evidence  does  not  support  the  judgment.' 


'Gordon  v.  Darnell,  5  Colo.  302;  Martin  v.  Force,  3  Colo.  199; 
Law  V.  Brinker,  6  Colo.  555;  Harkinson  v.  D.  P.  A.  Co.,  6  Colo. 
269;  Gibbs  V.  Wall,  10  Colo.  153;  Schwed  e/  a/,  v.  Robson,  12  Colo. 
400;  York  V.  Fortenbury,  15  Colo.  129. 

2  Bouvier's  Law  Diet.,  tit.  "  Testimony  ;  "  iGreenl.  Ev.;  i  Thomp- 
son Trials,  §  2784;  Bergundthal  v.  Bailey,  15  Colo.  257. 


i66  Practice  in  Courts  of  Review, 

Exception  to  Judgment — When  Necessary. 

Sec.  109.  It  is  held  by  the  Supreme  Court,  in  re- 
peated decisions,  that  in  all  cases  where  a  trial  is  had 
to  the  court  without  a  jury,  if  the  party  aggrieved  by 
the  judgment  desire  to  have  the  sufficiency  of  the 
evidence  to  support  the  judgment  reviewed  by  the 
appellate  court,  an  exception  must  be  taken  to  the 
judgment.  Such  exception  is  not  preserved  by  a 
statement,  made  by  the  clerk  in  the  record  entry  of 
the  judgment,  that  the  party  excepted  to  such  judg- 
ment. If  an  exception  to  the  judgment  be  not  prop- 
erly taken  and  preserved,  the  court  of  review  will  not 
entertain  and  pass  upon  an  assignment  of  error,  that 
"the  judgment  is  not  supported  by  the  evidence."^ 

But  an  omission  to  except  to  the  judgment  does 
not  preclude  the  court  from  considering  errors  as- 
signed, based  upon  exceptions  duly  reserved  during 
the  progress  of  the  trial,  and  all  such  errors,  except 
that  which  calls  in  question  the  sufficiency  of  the 
evidence  to  support  the  judgment,  will  be  passed 
upon  by  the  court  of  review." 

Bill  of  Exceptions — Evidence  on  the  Trial. 

Sec.  iio.  It  is  especially,  when  the  appellate  court 
is  called  on  to  review  the  evidence  heard  in  the  trial 


'Col.  Spgs  V.  Hopkins,  5  Colo.  206;  Breen  v.  Richardson,  6  Colo. 
605  ;  Phelps  V.  Spruance,  i  Colo.  414;  Law  v.  Brinker,  6  Colo.  555; 
Brown  V.  Landon,  11  Colo.  162;  People  v.  McCoy,  132  111.  140;  Bank 
V.  LeMoyne,  127  111.  254. 

^  Patten  v.  C.  &  T.  B.  C.  M.  Co.,  3  Colo.  265.  and  cases  cited  above. 


Bill  of  Exceptions.  167 

court,  for  the  purpose  of  determining  its  sufficiency 
to  support  the  Judgment,  that  the  proper  framing  of 
the  bill  is  of  vital  importance  to  the  appellant  or 
plaintiff  in  error.  It  should  be  framed  with  the 
utmost  care,  so  as  to  contain  not  only  all  the  evi- 
dence heard  at  the  trial,  but  also  all  evidence  offered 
by  the  party  and  excluded  by  the  court,  with  an 
exception  taken  to  the  ruling  excluding  it  ;  all  evi- 
dence admitted  by  the  court,  over  objection  by  either 
party ;  the  objections  stated  to  that  evidence  ;  the 
reasons  stated  in  support  of  such  objections ;  the 
ruling  and  decision  of  the  court,  admitting  or  exclud- 
ing such  evidence,  and  the  exception  taken  to  such 
rulin 


The  failure  to  state  the  reasons  of  the  exception 
often  renders  the  exception  unavailing  in  the  court 
of  review.  Hence,  the  party  excepting  should  insist 
upon  his  grounds  for  making  the  objection,  as  stated 
to  the  court,  being  taken  down  by  the  stenographer 
in  his  notes,  that  the  grounds  of  objection  stated  in 
the  trial  court  may  be  known  to  the  appellate  court. 
In  transcribing  the  notes  of  the  stenographer  for  the 
purpose  of  making  up  the  bill,  special  care  should  be 
taken  to  have  each  objection  in  perspicuous,  intelli- 
gible and  unambiguous  language,  so  that  the  point 
of  both  the  objection,  of  the  decision  and  of  the  ex- 
ception thereto  may  be  clearly  expressed,  and  not  be 
susceptible    of    misconstruction.     The   language    of 

1  Ward  V.  Wilms,  i6  Colo.  87. 


i68  Practice  in  Courts  of  Review. 

the  bill,  if  uncertain  or  ambiguous,  or  capable  of  sev- 
eral meanings,  vv^ill  be  construed  most  strongly 
against  the  party  who  prepares  it.  Care  should  also 
be  taken  that  the  bill  show  that  each  exception  was 
taken  at  the  time  of  the  ruling  excepted  to,  and  not 
at  a  later  period  of  time  during  the  progress  of  the 
trial. 

Objections  to  Evidence. 

Sec.  III.  When  the  bill  shows  that  the  evidence 
was  objected  to,  it  must  state  whether  the  objection 
was  to  its  relevancy,  under  the  issues,  or  its  incom- 
petency for  the  specific  purpose  for  which  it  is 
offered,  or  its  incompetency  for  any  purpose  ;  whether 
the  objection  is  taken  to  the  competency  of  the  wit- 
ness or  to  his  testimony.  The  specific  grounds  of 
the  objection  must  unmistakably  appear  by  the  evi- 
dence offered,  or  be  brought  to  the  attention  of  the 
trial  court  at  the  time  of  making  the  objection,  and 
not  left  to  conjecture  or  inference.^ 

The  cases  in  which  courts  of  review  are  called  on 
to  review  the  evidence  are  of  two  classes:  The  first, — 
when  the  party  making  the  objection  to  the  evidence 
is  overruled,  and  he  takes  an  appeal  from  the  final 
judgment,  or  takes  a  writ  of  error.  The  second, — 
when  the  objection  is  sustained  and  the  evidence  is 
excluded,  and  the  adverse  party  takes  a  writ  of  error 
or  appeal. 

'Gilpin  V.  Gilpin,  12  Colo.  517. 


Objections  to  Evidence.  169 

In  the  first  case,  where  the  party  who  makes  the 
objection  is  overruled,  the  evidence  admitted  and 
by  reason  of  the  admission  of  such  evidence  a  judg- 
ment is  rendered  against  him,  he  must  state  in  the  bill 
what  the  question  was,  which  was  asked, —  the  an- 
swer o-iven  to  such  question,  or  what  the  evidence,  if 
documentary  (setting  it  out  in  full),  which  was  ad- 
mitted over  his  objection.  This  is  necessary  to  en- 
able the  reviewing  court  to  determine  whether  the 
admission  of  the  evidence  was  detrimental  to  his 
case.  It  must  also  appear  that  the  evidence  so  ad- 
mitted, over  his  objection,  had  a  tendency  to  injure 
him.  and  the  evidence  appearing  in  the  bill  must  raise 
a  presumption  that  he  may  have  been  injured  by  its 
admission.  But  when  the  ruling  is  beyond  question 
erroneous,  the  court  will  presume  that  the  party, 
over  whose  objection  the  evidence  was  admitted,  was 
injured  by  its  admission,  unless  the  contrary  clearly 
appear  to  the  court. 

In  the  second  cd^sa,  when  the  objection  to  the  evi- 
dence is  sustained  by  the  trial  court,  and  the  evidence 
offered  to  be  introduced  is  excluded,  the  party  who 
claims  to  have  been  aggrieved  by  such  exclusion 
must  see  that  his  bill  states  :  —  What  questions  he 
asked,  or  what  evidence  he  offered  to  introduce; 
Second,  that  the  evidence  so  offered  was  excluded  by 
the  court;  in  such  case  it  should  show  that  he  dis- 
tinctly stated  the  evidence  which  he  proposed  to  in- 
troduce, and  its  bearing  on  the  issues  then  being 
22 


I70  Practice  in  Courts  of  Review. 

tried;  the  nature  of  the  objections  made  by  the  ad- 
verse party  to  the  introduction  of  such  evidence,  and 
the  ruHng  of  the  court  sustaining  the  objection, 
and  what  objections,  if  several,  but  not  all,  were 
sustained,  and  his  exception  to  the  ruling  of  the  trial 
court. 

There  are  certain  well-established  rules,  which  are 
controlling  in  the  making  of  objections  to  the  admis- 
sibility of  evidence  at  the  trial  of  a  cause.  First. 
When  an  objection  is  made  by  a  party  to  evidence, 
which  the  adverse  party  offers  to  introduce,  justice 
both  to  such  party  and  to  the  court  requires  that  the 
objecti.on  be  made  on  specific  grounds,  so  that  the 
party  who  offers  the  evidence  may  remove  the 
o-rounds  of  the  objection  thereto,  if  it  be  in  his  power 
to  do  so  at  that  time.^ 

Thus  if  the  objection  to  the  question  be  that  it  is 
leading,  and  the  case  be  not  one  where  the  court  may, 
in  its  discretion,  permit  leading  questions  to  one's 
own  witness,  the  form  of  the  question  may  be  so 
changed  as  to  avoid  that  objection.  If  the  objection 
be  that  the  evidence  offered  is  irrelevant  to  the 
issues  in  the  case,  the  party  offering  it  may  satisfy 
the  court  how  and  in  what  manner  it  is  relevant.  If 
the  objection  made  be  to  the  competency  of  the  wit- 
ness to  testify  in  relation  to  the  matters  inquired  of 
him,  his  competency  may  be  shown,  as  in  the  case  of 

'  Hi^gins  V.  Armstrong,  9  Colo.  38. 


Objections  to  Evidence.  171 

experts,  etc.  If  it  be  objected  that  the  evidence  of- 
fered is  immaterial,  the  objection  may  be  removed  by 
showing  its  materiahty.  If  the  objection  be  to  the 
order  of  its  introduction,  the  party  offering  it  may 
withdraw  the  offer  for  the  time  being,  and  again  offer 
it  at  a  subsequent  period  of  the  trial.  Courts  of  re- 
view invariably  hold  that  all  objections  to  evidence, 
which  are  capable  of  being  removed,  when  proper  ob- 
jection is  made  thereto,  must  be  made  first  in  the 
trial  court,  and  be  brought  up  from  that  court  by  bill 
of  exceptions.  They  will  not  be  entertained  if  made 
for  the  first  time  in  the  appellate  court. 

Second.  A  general  objection  to  the  evidence  will 
not  be  sustained  by  the  appellate  court,  unless  the 
evidence  offered  and  excluded  be  clearly  unavailable 
to  the  party  offering  it,  for  any  purpose  whatever 
within  the  pleadings,  and  its  unavailability  cannot  be 
remedied  by  a  more  specific  objection,  which  might 
be  removed.  Thus,  in  Gilpin  v.  Gilpin  it  is  said  : 
"  General  objections,  or  objections  without  specific 
grounds  therefor  being  stated,  may,  as  a  general  rule, 
be  safely  overruled,  unless  the  testimony  sought  to 
be  introduced  is  of  such  a  character  as  to  be  inadmis- 
sible for  any  purpose  whatever,  and  the  grounds  of 
its  inadmissibility  must  unmistakably  appear,  or  in 
some  manner  be  brought  to  the  attention  of  the 
court  at  the  time  of  the  ruling,  and  not  be  left  to 
conjecture  or  inference."  Cases  where  a  general 
objection  will  suffice  are  rare  in  practice,  and  all  au- 


172  Practice  in  Courts  of  Review.    • 

thorities  are  unanimous  that  a  party  cannot  safely 
risk  a  point  on  a  merely  general  objection.^ 

Third.  The  bill  must  show  that  the  proper  spe- 
cific objection  to  the  evidence  was  made  in  the  trial 
court.  The  objection  made  must  be  such  that  the 
court  can  put  its  finger  on  the  point  of  the  objection. 
Thus  an  objection  that  the  evidence  is  irrelevant  will 
not  be  sustained,  unless  the  objector  specifically  state 
in  what  respects  the  offered  evidence  is  irrelevant  to 
the  issues  being  tried,  unless  the  court  can  clearly  see 
that  under  no  possible  circumstances  can  the  evi- 
dence be  relevant.  An  objection  that  the  evidence 
is  incompetent  does  not  raise  any  other  question  than 
that  of  its  competency,  and  though  the  question  be 
immaterial,  irrelevant  and  improper,  or  leading,  or 
objectionable  for  any  other  reason,  it  must  be  incom- 
petent to  justify  the  trial  court  in  sustaining  the  ob- 
jection made.  And  it  is  held  to  be  error  for  the 
court  to  sustain  an  objection  to  evidence  on  other 
grounds  than  that  specified,  unless  the  evidence 
be  inadmissible  for  any  purpose  whatever  in  the 
action. 

Fourth.  The  appellate  court  will  not  consider  an 
objection  to  evidence  admitted,  when  the  only  issue 
in  the  case,  to  which  that  evidence  was  applicable, 
was  found  by  the  court  or  jury  in  favor  of  the  appel- 
lant or  plaintiff  in  error.^ 

'  Gilpin  V.  Gilpin,  12  Colo.  517  ;  Ward  v.  Wilms,  16  Colo.  88. 
■^  Schiffer  v.  Adams,  13  Colo.  578. 


Amended  Bill.  173 

« 

Fifth.  It  is  the  uniform  rule  of  courts  of  review  to 
sustain  the  ruling  of  the  trial  court,  if  the  specific  ob- 
jection made  in  that  court  be  untenable,  without  ex- 
amining the  record  for  other  well-founded  objections 
which  exist,  which,  had  they  been  properly  made  and 
in  apt  time,  would  have  justified  a  different  ruling  in 
that  court. 

The  foregoing  remarks  are  here  made  to  call  the 
attention  of  the  practitioner  to  the  importance  of 
clear  and  specific  statements  at  the  time  of  making 
objections  to  evidence;  of  making  the  objections  on 
correct  grounds,  and  then  saving  the  proper  excep- 
tion at  the  time,  as  a  careful  examination  of  the  re- 
ports of  cases  decided  will  show  that  very  many  cases 
are  decided  contrary  to  the  expectation  of  the  party 
complaining  because  the  proper  objection  has  not 
been  made  or  that  the  exception  has  been  improp- 
erly reserved  and  noted  in  the  bill. 

Of  Procuring  an  Amended  Bill  of    Exceptions. 

Sec.  112.  It  will  sometimes  be  found  that  the  orig- 
inal bill  fails  to  fairly  present  matters  which  actually 
transpired  at  the  trial,  and  are  material,  and  that 
this  is  occasioned  by  mistake,  oversight  or  inadver- 
tence. In  such  case  it  is  the  right  of  the  party  af- 
fected by  such  mistake  to  have  a  proper  bill  of  ex- 
ceptions, made  so  by  amendment,  signed  and  sealed 
by  the  trial  judge,  on  proper  notice  to  the  adverse 
party.     To  make    such   amendments,    however,    the 


174  Practice  in  Courts  of  Review. 

court  must  have  sufficient  memoranda  or  notes  to 
show  it  what  actually  took  place  at  the  trial,  and  in 
what  respect  the  bill  as  filed. is  incorrect.  The  pro- 
ceedinor  to  obtain  the  amendment  must  be  initiated 
in  the  trial  court  and  before  the  same  judge  who  pre- 
sided at  the  trial.  If  it  affirmatively  appear  from  the 
amended  bill  that  the  amendment  was  made  solely 
on  the  recollection  of  the  trial  judge,  the  amended 
bill  will  be  stricken  out  in  the  court  of  review  as  un- 
authorized. But  unless  the  contrary  affirmatively  ap- 
pears, it  will  be  presumed  that  the  trial  judge  made 
the  corrections  by  sufficient  memoranda  in  his  pos- 
session.^ 

Motion  for  a  New  Trial  when  Unnecessary. 

Sec.  113.  Under  the  practice,  as  it  existed  previous 
to  the  Code  of  1887,  whenever  there  was  a  trial  of  an 
issue  of  fact,  whether  before  a  jury,  a  referee  or  the 
judge,  it  was  necessary  to  make  a  motion  for  a  new 
trial,  and  in  such  motion  to  assign  all  errors  deemed 
prejudicial  to  the  party  making  the  motion,  as  a  requi- 
site to  obtain  a  review  of  such  errors  on  appeal  or 
writ  of  error.  The  Code  of  1887  has  changed  this  rule 
in  some  respects.      It  provides  that : 

"  A  motion  for  a  new  trial  shall  not  be  necessary  to 
enable  the  appellate  court  to  review  the  judgment 
and  orders  of  the  trial  court,  where  the  matters  al- 


'  People  V.  Anthony,  129  111.  221. 


New  Trial.  175 

leo-ed  as  errors  have  once  been  passed  upon  by  such 
court,  against  exceptions  made  at  the  proper  time."^ 

Hence,  where  the  party  has  duly  excepted  to  the 
ruHngs  of  the  trial  court  made  during  the  trial  of  the 
issues  of  fact,  and  reserved  his  exceptions  properly, 
at  the  time  of  making  the  rulings,  contrary  to  the 
former  rule,  a  motion  for  a  new  trial  is  not  necessary 
to  authorize  the  court  of  review  to  review  those  rulings. 

But  though  unnecessary  as  a  prerequisite  to  a  re- 
view in  a  higher  court,  a  cautious  practitioner  will  not 
neglect  to  prepare  and  present  his  motion  for  new 
trial,  in  a  case  of  any  importance,  as  he  may  thereby 
procure  from  the  trial  court  a  beneficial  change  or 
modification  of  the  rulings  of  which  he  complains, 
and  thereby  save  the  expense  and  delay  incident  to 
an  appeal  or  writ  of  error.  On  the  argument  of  the 
motion  for  a  new  trial,  he  may  be  able  to  convince 
the  court  that  it  has  committed  substantial  error 
prejudicial  to  him,  and  may  thereby  procure  a  retrial, 
if  it  was  heard  before  a  jury,  or  a  modification  of  the 
judgment,  if  tried  to  the  court. 

'  Code,  §  393- 


ijG  Practice  in  Courts  of  Review. 


CHAPTER  VI. 
The  Assignment  of  Errors. 

Sec.    114.  Of  the  assigning  of  errors. 

115.  Some  decisions  as  to  matters  not  assignable  for  error  in 

tlie  court  of  revMew  in  the  first  instance. 

116.  What  assignable  for  error. 

117.  Want  of  facts  assignable  for  error. 

118.  Other  errors  in  record  proper. 

119    Errors  appearing  by  bill  of  exceptions. 

120.  Matters  of  judicial  discretion  not  assignable. 

121.  Error  in  sustaining  or  overruling  a  challenge. 

122.  Error  in  instructions. 

123.  Form  of  assignment  of  errors. 

Of  Assigning  Errors. 

Sec.  114.  When  the  attorney  for  the  plaintiff  in 
error,  or  appellant,  has  received  from  the  clerk  of 
the  trial  court  a  duly  authenticated  transcript  of  the 
record  in  that  action  or  proceeding,  he  should,  before 
lodging  it  with  the  clerk  of  the  appellate  court,  care- 
fully examine  it  to  ascertain  whether  there  are  any 
errors  or  omissions  in  such  transcript.  He  should 
particularly  look  to  the  bill  of  exceptions,  and  see  if 
it  have  been  properly  signed  and  sealed  by  the  trial 
judge  ;  and  in  a  criminal  case,  where  the  bill  is  not 
sent  up  in  its  original  form,  whether  the  clerk  has 


Assigning  Error.  177 

truly  copied  the  signature  and  seal  of  the  judge.  If, 
on  an  examination  of  it,  he  find  any  errors  and  omis- 
sions, the  omissions  should  be  supplied  and  the 
errors  corrected  before  he  prepares  the  assignment 
of  errors  and  files  the  transcript  with  the  clerk  of  the 
appellate  court.  If  the  errors  are  mere  clerical  errors 
of  the  transcriber,  he  should  at  once  have  them  cor- 
rected by  the  clerk  of  the  trial  court.  If  the  errors 
or  omissions  in  the  transcript  are  such  as  require 
the  action  of  the  trial  court  to  correct  them,  applica- 
tion should  at  once  be  made  to  the  trial  court,  on 
notice  to  the  adverse  party,  for  the  correction  of  its 
record.  If  this  can  be  done  in  cases  of  appeal,  before 
it  becomes  necessary  to  file  the  transcript  in  the 
appellate  court,  as  required  by  the  statute,  it  should 
be  done  at  as  early  a  day  as  possible.  If,  however, 
the  trial  court  be  not  sitting,  the  imperfect  transcript 
should  be  filed  in  the  appellate  court,  and  application 
be  made  thereto  for  an  order  staying  proceedings  until 
an  application  can  be  made,  at  the  next  sitting  of  the 
trial  court,  to  correct  the  errors  and  supply  the  omis- 
sions in  its  record.  The  appellate  court  will  grant 
the  necessary  stay  of  proceedings  on  a  proper  show- 
ing. When  the  errors  have  been  corrected  and  the 
omissions  supplied  by  the  trial  court,  a  supplemental 
transcript,  containing  the  required  corrections,  will 
then  be  obtained,  and  a  motion  be  made  in  the  appel- 
late court  for  leave  to  file  the  supplemental  transcript.^ 

'  Stebbins  v.  Anthony,  5  Colo.  342. 
23 


178  Practice  in  Courts  of  Review. 

The  rule  of  the  Supreme  Court  requires  that  the 
errors  which  are  claimed  to  exist  in  the  record  shall 
be  assigned  in  writing  and  be  indorsed  on  or  be  ap- 
pended to  the  transcript  at  the  time  of  filing  the 
record.  If  this  rule  be  not  complied  with,  the  writ 
of  error  or  appeal  may  be  dismissed. 

An  assignment  of  errors  must  be  made  on  the 
record  as  a  part  of  the  record.  Hence  it  is  not  a 
compliance  with  the  rule  to  make  the  assignment  of 
errors  on  a  separate  sheet  of  paper  and  insert  it  in 
the  record.  It  must  be  attached  firmly  to  the  tran- 
script, as  a  part  thereof.  Thus,  where  a  loose  paper, 
unsigned,  without  title  of  court,  or  cause,  or  a  file- 
mark,  was  found  by  one  of  the  judges  among  the 
printed  matter  in  the  case,  when  it  came  to  him  after 
conference,  though  it  seemed  to  be  intended  as  an 
assignment  of  errors,  it  was  wholly  disregarded  by 
the  court. 

This  rule  is  also  applicable  to  the  assignment  of 
cross-errors.  To  entitle  them  to  consideration  by 
the  court,  they  must  be  assigned  upon  or  attached 
to  the  record  filed. 

Where  this  is  not  done,  the  court  treats  the  case 
as  without  an  assignment  of  errors,  and  will  afifirm 
the  judgment  of  the  trial  court  without  a  further 
hearing  unless  leave  be  given  to  file  an  assignment 
of  errors. 

In  the  case  of  Home  et  al.  v.  Duff  et  al.,  the  Su- 
preme Court  refused  to  dismiss  the  writ  of  error  for 


Assignment  of  Error.  179 

failure  to  assign  error  until  the  last  day  before  the 
beginning  of  the  term,  it  appearing  that  no  real  or 
considerable  delay  was  occasioned  by  such  failure, 
but  imposed  terms  on  the  party  in  default.  In  Haas 
V.  Co.  Commissioners,  where  no  errors  whatever  were 
assigned,  the  appeal  was  dismissed.^ 

An  assignment  of  errors  is  a  pleading  of  the  ap- 
pellant or  plaintiff  in  error,  and  following  the  rule  as 
to  all  pleadings  will  be  most  strongly  construed 
against  the  pleader.  It  performs  the  same  office  in  a 
court  of  review  as  a  complaint  in  a  trial  court  of 
record,  and  is  indispensable  to  enable  the  reviewing 
court  to  affirm  or  reverse  the  judgment  of  the  trial 
court 

There  are  certain  well-established  rules  which 
govern  the  assignment  of  errors  : 

First.  Error  in  the  proceedings  of  the  trial  court 
is  never  presumed.  The  regularity  and  correctness 
of  all  the  proceedings,  rulings  and  decisions  made 
during  the  progress  of  the  cause  is  presumed,  until 
the  contrary  is  conclusively  shown.  The  party  as- 
signing error  attacks  the  regularity  of  such  proceed- 
ings, and  the  correctness  of  the  rulings  and  decisions 
and  thereby  assumes  the  burden  of  overcoming  such 
presumption  by  showing  the  existence  of  error 
therein. 


'Home  V.  Dufif,  5  Colo.  344;  Haas  v.  Co.  Comm.,  5  Colo.  125; 
Rule  13  of  Supreme  Court;  Lancaster  v.  Ry.  Co., 133  111.  494  ;  Capek 
V.  Kropik.  129  III.  514;  Ins.  Co.  v.  Travelstead,  29  111.  App.  660; 
Bogue  B.  Co.  V.  Boyden,  33  111.  App.  252. 


i8o  Practice  in  Courts  of  Review. 

Second.  Each  error,  which  is  claimed  to  exist  on  the 
record  of  the  cause,  must  be  specifically  assigned  as 
such,  and  the  place  where  it  exists  in  the  record 
must  be  specifically  pointed  out.  A  general  assign- 
ment of  error,  that  the  court  erred  in  admitting 
improper  testimony,  or  erred  in  rejecting  proper  or 
material  testimony;  a  general  assignment  of  error, 
that  the  court  erred  in  giving  all  the  instructions 
given  for  the  plaintiff,  or  for  the  defendant,  and  in 
fact  all  assignments  of  error  which  are  not  suffi- 
ciently specific,  will  be  disregarded  by  the  court  of 
review.^ 

Third.  The  error  alleged  must  appear  to  have 
caused  injury  to  the  party  who  assigns  it.  A  plain- 
tiff in  error  will  not  be  permitted  to  assign  for  error 
any  ruling  of  the  trial  court  in  the  cause  which  does 
not  prejudice  his  individual  rights,  although  it  may 
have  injured  another  party  to  the  cause  who  does 
not  join  in  prosecuting  the  writ  of  error.  The  rule, 
however,  is  different  where  the  co-defendant  has  a 
joint  interest  with  those  who  complain,  and  has  a 
rip-ht  to  insist  on  a  decision  which  shall  settle  the 
respective  rights  of  all  the  parties  concerned.  Thus 
errors  assigned  on  behalf  of  parties  who  have  been 
improperly  made  parties  and  have  been  dismissed 
from  the  suit  for  that  reason  will  not  be  entertained 
by  the  court.     The  proper  procedure  in  such  case  is 

'  Rule  13  of  Supreme  Court ;  RR.  v.  Smith,  5  Colo.  160;  Hanna  v. 
Barker,  6  Colo.  303. 


Assignment  of  Error.  i8i 

to  move  to  strike  such  assignments  from  the  assign- 
ment of  errors. 

So  error  cannot  be  assigned  on  any  matter,  unless 
the  trial  court  has  had  its  attention  called  thereto, 
and  made  a  ruling  thereon,  or  refused  to  rule  thereon, 
and  the  proper  exception  have  been  taken  at  the 
time.^ 

If  there  are  several  plaintiffs  in  error  or  appellants, 
the  court  of  review  will  not  consider  an  assignment 
of  error,  unless  such  error  is  prejudicial  to  all  who 
prosecute  the  proceedings  in  error. 

Fourth.  When  the  errors  assio-ned  exist  in  that 
portion  of  the  record  which  does  not  constitute  the 
record  proper,  it  will  not  be  considered  by  the  re- 
viewing court,  unless  an  exception  to  the  decision  or 
ruling  of  the  trial  court  was  properly  taken  and  re- 
served, and  is  brought  to  the  appellate  court  by  a 
duly  authenticated  bill  of  exceptions.'^ 

To  these  rules  there  are  two  specific  exceptions. 
The  first  exception  is,  when  the  trial  court  had  no 
jurisdiction  of  the  subject-matter  of  the  action  or  of 
the  party  defendant  against  whom  the  judgment  was 
rendered. 

The  second  exception  to  this  rule  is,  when  the  com- 
plaint filed  in  the  action  in  the  trial  court  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action 


'M.  T.  Co.  V.  111.  T.  &  S.  Bank.  129  111.  297;  Brown  v.  Miner,  128 
111.  154;  Harding  V.  Durand,  36  111.  App.  239;  Alley  v.  Limbert,  35 
111.  App.  594. 

'Kinnear  v.  Tucker,  i  Colo.  74;  Delappev.  Sullivan,  7  Colo.  182. 


1 82  Practice  in  Courts  of  Review. 

against  the  defendant.  These  objections  may  be 
raised  at  any  stage  of  the  case,  and  can  be  taken  in 
a  court  of  review  for  the  first  time.^ 

Some  Decisions  as  to  Matters  not  Assignable  for 

Error   in    a    Court   of   Review,   in   the  First 

Instance. 

Sec.  115.  First.  An  objection  that  there  is  a  variance 
between  the  complaint  and  the  proof  on  the  trial  in 
the  trial  court  is  not  assignable  as  error,  when  made 
for  the  first  time  in  the  appellate  court.^ 

Second.  Where  an  erroneous  instruction  is  given 
at  the  instance  of  the  party  who  assigns  error,  he  can- 
not be  permitted  to  assign  such  instruction  for  error 
in  the  court  of  review.^ 

Third.  That  plaintiff  was  permitted  to  file  an 
amended  complaint,  and  that  such  amended  complaint 
introduced  a  new  cause  of  action  cannot  be  raised  in 
a  court  of  review  in  the  first  instance.^ 

Fourth.  An  objection  to  the  form  of  the  verdict 
cannot  be  made  in  the  appellate  court  in  the    first 

instance.^ 

Fifth.  An  obiectlon  that  a  defense  relied  on  in  the 
trial  court  is  not  an  available  defense  may  not  be 
made  in  the  court  of  review  in  first  instance.^ 


'  Marriott  v.  Clise,  12  Colo.  564. 

2  Smith  V.  Roe,  7  Colo.  95  ;  McCoy  v.  Wilson.  8  Colo.  337  ;  King 
V.  DeCoursev,  8  Colo.  463;  Williams  v.  Mellor.  12  Colo.  i. 

^Leitersdorfer  v.  King,  7  Colo.  AV-  *  King  v.  Rea,  13  Colo.  69, 
^Quimby  v.  Bovd.  8  Colo.  200;  Ry.  Co.  v.  Woodward,  4  Colo.  i. 
« McCoy  V.  Wilson,  8  Colo.  337. 


Assignment  of  Error.  183 

Sixth.  An  objection  in  an  adverse  claim  suit,  that 
the  action  was  not  brought  in  time,  cannot  be  made 
in  the  first  instance  in  the  appellate  court.^ 

Hence,  when  assigning  errors,  the  plaintiff  in  er- 
ror, or  appellant,  must  be  careful  to  assign  as  error 
no  matter  which  is  neither  not  to  be  found  in  the 
record  proper,  or  is  not  brought  into  the  record  by  a 
proper  bill  of  exceptions,  if  he  desire  such  assignment 
of  error  to  be  passed  upon  by  the  court  of  review. 

In  the  preparation  of  the  assignment  of  errors  it 
must  be  borne  constantly  in  mind  that  every  error 
which  the  court  may  have  committed  during  the 
progress  of  the  trial  will  not  be  sufficient  to  authorize 
a  reversal  of  the  judgment.  Hence,  unless  the  ques- 
tion raised  be  one  of  practice,  in  which  it  is  desirable 
that  the  practice  be  settled  for  the  government  of 
trial  courts,  the  points  to  be  considered  by  the  party 
assigning  error  are  : 

First.  What  apparent  errors  are  found  in  both 
the  record  proper  and  in  the  bill  of  exceptions  ? 

Second.  Does  any  thing  appear  in  the  transcript, 
from  which  the  appellate  court  may  infer  a  waiver  of 
any  of  such  errors  ? 

Third.  Have  exceptions  been  taken  and  properly 
preserved  to  any  erroneous  ruling  or  decision  of  the 
trial  court,  and  do  the  taking  of  such  exceptions, 
the  exceptions  themselves,  and  the  rulings  excepted 
to,  properly  appear  in  the  bill  ? 

^  Marshall  S.  M.  Co.  v.  Kirtley,  12  Colo.  417. 


i84  Practice  in  Courts  of  Review. 

Fourth.  Are  such  errors  prejudicial  to  the  party 
assigning  error? 

Fifth.  Are  such  errors  of  such  a  nature,  that  a  re- 
versal or  modification  of  the  judgment  may  reason- 
ably be  expected  in  the  appellate  court  ? 

If  the  above  points  are  carefully  considered  when 
preparing  the  assignment  of  errors,  the  practitioner 
will  be  spared  the  trouble  and  labor  of  assigning 
errors,  which  will  either  be  ignored  by  the  court  of  re- 
view, or  held  not  to  be  available  to  the  party  assigning 

them. 

What  Assignable  for  Error. 

Sec.  II 6.   When  preparing  to  assign  errors  on  the 
transcript,  the  first  point  to  which   attention   should 
be  directed  is  the  jurisdiction  of  the  court  over  the 
subject-matter  of  the  action  and   of  the  defendants. 
Except  in  cases  exclusively  within  the  jurisdiction  of 
the  Federal   court,   want  of  jurisdiction   of   the  sub- 
ject-matter of  the  action  can   rarely  exist  in   the  Dis- 
trict Courts  of   the  State.      By  the   Constitution  the 
District  Court  has  original  jurisdiction   of  all  causes 
both  at  law  and  in  equity.      Hence  no  cause  of  action 
whatever  is  presumed  to  be  without   its   jurisdiction, 
and  if  the  error  be  assigned  that   the    District  Court 
has  no  jurisdiction  of  the  cause  of  action   set   out  in 
the  transcript,  the  party    assigning   such   error   must 
specifically  point  out  wherein  and  by  what   law  that 
court  is  deprived   of  jurisdiction    of    that    particular 
cause  of  action. 


Assignment  of  Error.  185 

But  while  County  Courts  stand  on  the  same  foot- 
ino-  in  civil  actions  as  District  Courts  in  all  civil  mat- 
ters,  and  they  have  concurrent  jurisdiction  with  the 
District  Court  in  all  civil  matters,  yet  as  by  the  Con- 
stitution that  jurisdiction  is  limited  to  the  sum  of 
two  thousand  dollars,  there  is  always  a  want  of  juris- 
diction of  the  subject-matter  where  the  judgment  of 
the  court  is  for  a  sum  in  excess  of  two  thousand 
dollars,  exclusive  of  the  costs  in  the  action.^  This 
want  of  jurisdiction  will  appear  on  the  face  of  the  rec- 
ord, for  a  court  of  review  judicially  notices  the  limi- 
tations on  the  jurisdiction  of  courts  prescribed  by  the 
Constitution  and  laws.  But  if  the  amount  claimed  at 
the  commencement  of  the  action  do  not  exceed  the 
sum  of  two  thousand  dollars,  such  jurisdiction  is  not 
ousted  by  the  accumulation  of  interest  during  the 
pendency  of  the  suit.  And  in  the  case  of  Keystone 
Minine  Co.  v.  Gallagher  it  was  held  that  in  me- 
chanics'  lien  cases,  any  number  of  lienors  may  join  in 
the  proceeding,  though  the  aggregate  of  their  claims 
exceed  two  thousand  dollars,  and  that  the  objection 
of  a  want  of  jurisdiction  will  not  be  tenable,  because 
the  judgments  in  favor  of  each  claimant  is  a  separate 
judgment  *  '^  *  if  the  claim  of  no  one  does  not 
exceed  two  thousand  dollars.^ 


'  Leonard  V.  Tritch,  6  Colo.  441;  RR.  Co.  v.  Church,  7  Colo, 
143;  RR.  Co.  V.  Otis,  7  Colo.  196;  D.  C.  etc.,  Co.  v.  Middaugh. 
12  Colo.  434;  Frue  v.  Houghton,  9  Colo.  323. 

•^  Keystone  Mfg.  Co.  v.  Gallagher,  5  Colo.  23. 

24 


i86  Practice  in  Courts  of  Review. 

When  want  of  jurisdiction  of  the  subject-matter 
appears  by  the  record,  error  may  be  assigned  thereon 
without  examining  the  record  to  find  a  consent  or  a 
waiver,  for  consent  cannot  confer  jurisdiction  of  a 
cause  of  action  in  a  case  where  such  jurisdiction  is 
not  conferred  by  some  law.^ 

This  principle  has  been  repeatedly  referred  to  by 
the  Supreme  Court  in  its  opinions,  and  it  holds  that 
the  objection  of  want  of  jurisdiction  of  the  subject- 
matter  may  be  raised  at  any  time. 

But  it  is  different  with  jurisdiction  of  the  person. 
If  this  appears,  as  it  usually  will  in  cases  of  judg- 
ment by  default;  in  cases  of  the  service  of  the  sum- 
mons by  publication,  and  in  many  other  cases,  it  will 
be  the  duty  of  the  party  assigning  error  to  examine 
the  record,  and  inquire  whether  any  act  has  been 
done  in  his  behalf,  by  which  jurisdiction  of  his  person 
has  been  given  to  the  court,  notwithstanding  the 
apparent  want  of  jurisdiction.  Thus,  though  he  may 
never  have  been  served  with  a  summons,  yet  if  he 
have  appeared  in  the  trial  court  for  any  purpose, 
other  than  that  of  objecting  to  its  action,  because 
without  jurisdiction  of  his  person,  and  have  there 
filed  a  motion,  or  a  demurrer  or  other  pleading  to  the 
merits  of  the  action,  then  the  objection  of  want  of 
jurisdiction  of  his  person  is  not  maintainable,  for  in 
cases  of  jurisdiction  of  the  person  the  want  of  juris- 

'  San  Juan,  etc.,  Co.  v.  Finch,  6  Colo.  219;  Clayton  v.  Clayton, 
4  Colo.  4(5  ;  RR.  Co.  v.  Neis,  10  Colo.  56  ;  Reed  v.  Cates.  11  Colo. 
527;  RR.  V.  Caldwell,  11  Colo.  545. 


Jurisdiction.  187 

diction  may  be  waived.  In  such  cases  consent  will 
confer  jurisdiction,  and  error  for  want  of  jurisdiction 
will  not  be  tenable.^ 

It  must  also  be  borne  in  mind  that,  if  the  transcript 
show  a  general  appearance  in  the  trial  court  by  the 
party  who  assigns  as  error  want  of  jurisdiction  of  his 
person,  the  statement  of  the  record  cannot  be 
controverted  in  the  court  of  review,  for  the  record 
imports  verity,  and  is  not  to  be  impeached. 

Want  of  jurisdiction  of  the  person  appears,  where 
there  has  been  no  service  of  the  summons  on  the  de- 
fendant, and  no  general  appearance  has  been  entered 
by  or  for  him. 

Where  the  certificate  of  service  is  attacked  the 
amendment  to  section  ^S  of  the  Code  by  the  act  of 
1 89 1  must  be  noted.  Under  that  amendment  a  defect 
in  the  summons  or  its  service,  which  shall  be  sufficient 
to  set  aside  such  service  as  void,  must  be  a  defect  in 
substance. 

So  an  objection  for  want  of  jurisdiction  will  lie  if 
the  judgment  have  been  entered  before  the  time  for 
answer  prescribed  by  the  statute  have  fully  expired.^ 

In  assigning  error  for  want  of  jurisdiction  a  dis- 
tinction must  be  made  between  cases  where  the  want 
of  jurisdiction  affirmatively  appears  by  the  record, 

'  San  Juan,  etc.,  Co.  v.  Finch,  6  Colo.  219;  Clayton  v.  Clayton, 
4C0I0.  415;  RR.  Co.  V.  Neis,  10  Colo.  56;  Reed  v.  Cates,  11  Colo. 
527;   RR.  V.  Caldwell,  11  Colo.  545. 

^Conley  v.  Morris,  5  Colo.  212;  Skiles  v.  Baker,  5  Colo.  295; 
Brown  v.  Tucker,  7  Colo.  30. 


i88  Practice  in  Courts  of  Review. 

and  cases  where  the  want  of  such  jurisdiction  is  made 
to  appear  by  matter  dehors  the  record.  In  the  latter 
case  the  facts  which  tend  to  show  want  of  jurisdic- 
tion must  have  been  presented  to  the  trial  court,  and 
if  the  objection  be  denied,  the  evidence  must  be  in- 
corporated into  a  bill  of  exceptions,  with  the  ruling 
of  the  court  and  an  exception  thereto  properly  re- 
served, and  thus  brought  to  the  notice  of  the  court  of 
review. 

Want  of  Facts  Assignable  for  Error. 

Sec.  1 1 7.  Having  determined  the  question  whether 
error  for  want  of  jurisdiction  will  lie,  the  next  most 
important  matter  to  determine  is  "  the  sufficiency  of 
the  facts  stated  in  the  complaint  to  constitute  a  cause 
of  action."  Error  for  want  of  sufficient  facts  is  as- 
signable in  the  court  of  review,  though  not  raised  in 
the  trial  court,  but  only  if  an  examination  of  the  com- 
plaint shows  so  total  an  absence  of  essential  facts 
that  no  liberality  of  construction  will  aid  it.  If  tak- 
ing all  the  facts  stated  in  the  pleading  together,  a 
good  cause  of  action  can  be  gathered  therefrom,  with- 
out regard  to  the  vague  or  defective  manner  in  which 
they  are  stated,  the  appellate  court  will  construe  the 
complaint  liberally,  and  hold  it  to  be  good.  If,  how- 
ever, an  examination  of  the  complaint  shows  an  ab- 
solute omission  of  some  fact  or  facts  which  are  in- 
dispensable to  constitute  the  cause  of  action,  an  as- 
signment of  error  for  want  of  facts  may  be  taken. 


Want  of  Facts.  189 

Thus,  in  the  case  of  Emery  v.  Yount  it  was  held  that 
an  allegation  of  "  the  insolvency  of  the  grantor  in  an 
action  to  set  aside  a  conveyance  in  fraud  of  creditors 
is  essential,  and  that  the  defect  is  not  cured  by  evi- 
dence establishing  such  insolvency."  But  before 
assigning  such  error,  the  pleader  should  ascertain 
whether  the  subsequent  pleadings  have  not  supplied 
the  averments  wanting  in  the  answer,  or  whether  the 
defect  has  not  been  cured  by  the  verdict  of  the  jury. 
It  is  a  rule  of  pleading  that  where  a  material  aver- 
ment is  omitted  in  a  complaint  or  answer,  and  the 
omitted  allegation  is  supplied  in  the  answer  or  reply, 
the  omission  is  cured.  Hence,  though  the  complaint 
be  substantially  defective,  an  assignment  of  error  is 
not  tenable,  if  the  defect  have  been  cured  in  a  subse- 
quent pleading.*  So,  if  the  defect  be  one  which  may 
be  aided  by  the  verdict,  an  assignment  of  error  on 
that  defect  would  be  unavailable  where  the  cause  had 
been  tried  to  a  jury. 

Other  Errors  in  Record  Proper. 
Sec.  118.  If  other  errors  appear  on  the  face  of  the 
record,  such  as  error  in  overruling  a  demurrer  to  the 
party's  pleading,  such  error  will  not  be  available,  un- 
less the  party  assigning  it  for  error  have  stood  by 
his  demurrer  and  refused  to  plead  further.  If,  when 
his  demurrer  is  overruled,  he  file  a  further  pleading, 

'  Emery  v.  Yount,  7  Colo.  109:  Herfort  v.  Cramer,  7  Colo.  484; 
Hall  V.  Linn,  8  Colo.  264  ;  James  v.  McPhee,  9  Colo.  493;  Marriot 
V.  Clise,  12  Colo.  561. 


iQO  Practice  in  Courts  of  Review. 

the  rule  is  inflexible,  except  where  there  is  an  abso- 
lute want  of  jurisdiction  of  the  subject  matter,  or  a 
want  of  sufficient  facts,  that  he  thereby  waives  any 
error  of  the  court  in  overruling  the  demurrer.^ 

But  error  may  be  found  in  the  ruling  of  the  court 
in  allowing  or  denying  motions  which  affect  the 
pleadings,  etc.,  made  part  of  the  record  proper  by 
Code  of  1887.  The  rulings  of  the  court  in  such 
cases  need  not  be  excepted  to,  under  section  387  of 
the  Code,  nor  need  such  motions  and  rulings  or  ex- 
ceptions thereto  be  preserved  by  bill  of  exceptions. 
In  such  case  but  two  questions  will  arise  for  adjudi- 
cation; the  one,  was  the  ruling  an  erroneous  ruling; 
the  second,  was  such  ruling  prejudicial  to  the  party 
assigning  it  for  error,  so  as  to  require  a  reversal  or  a 
modification  of  the  judgment.  If  both  questions 
can  be  answered  in  the  affirmative,  then  the  party 
may  assign  error  thereon.  Otherwise  an  assign- 
ment of  error  thereon  will  be  unavailable  for  any 
purpose. 

A  careful  scrutiny  of  the  entire  record  proper  is  to 
be  made,  so  that  no  material  error  may  be  over- 
looked, since  errors  may  sometimes  be  found  therein 
of  sufficient  importance  to  procure  a  modification  or 
reversal  of  the  judgment,  to  which  attention  was 
not  particularly  directed  during  the  trial  in  the  trial 
court. 


'  Webb  V.   Smith,  6  Colo.    365  ;  Schoelkopf  v.    Leonard,  8  Colo. 
159;  Gale  V.  James,  1 1  Colo.  542. 


Judicial  Discretion.  191 

Errors  Appearing    by   the    Bill   of  Exceptions. 

Sec.  119.  The  practitioner  will  next  proceed  to 
examine  the  bill  of  exceptions.  In  it  he  will  note, 
First.  All  motions  made  by  either  party  ;  the  rulings 
of  the  court,  allowing  or  denying  the  same  ;  the 
exception  taken  to  such  ruling,  and  reserved  at  the 
time  of  such  rulinof.  Second.  The  evidence  contained 
in  such  bill,  offered,  admitted  or  excluded,  of  both 
parties  ;  the  objections  made,  and  sustained  or  over- 
ruled ;  that  the  proper  objections  were  made  to  the 
evidence  ;  that  the  grounds  of  objection  are  clearly 
and  distinctly  stated  in  the  bill,  as  hereinbefore 
pointed  out,  and  that  the  bill  shows  that  the  excep- 
tion was  properly  taken,  reserved  and  stated  in  the 
bill.  Having  carefully  scanned  the  contents  of  the 
bill,  and  located  therein  each  particular  error  found 
in  it,  whatever  be  its  nature,  which  he  deems  assign- 
able, the  same  question  will  arise  :  Was  the  error 
prejudicial  to  the  party  he  represents?  If  so,  he 
may  assign  error  thereon.  He  should,  however,  see 
that  the  error  in  the  ruling,  if  adverse  to  him,  has 
not  been  waived  by  any  act  on  his  part. 

Matters  of  Judicial  Discretion   not  Assignable 

for  Error. 
Sec.  120.   There  are  many  matters  occurring  dur- 
ing the  progress  of  the  trial  which  rest  wholly  within 
the  discretion  of  the  trial  court,  and  are  not   review- 
able by  an  appellate  court,  unless  it  appear  that  the 


192  Practice  in  Courts  of  Review. 

trial  court  has  been  guilty  of  a  gross  abuse  of  discre- 
tion, which  has  resulted  in  substantial  injury  to  the 
party  complaining. 

Thus  an  allowance  of  an  application  to  amend  a 
pleading  is  a  matter  of  discretion.  So,  also,  is  the 
granting  or  refusal  of  a  continuance  or  postpone- 
ment of  the  trial.^ 

So  where  a  continuance  was  asked,  and  the  ad- 
verse party  offered  to  admit  that  the  absent  witness 
would  testify  as  is  stated  in  the  affidavit  for  a  post- 
ponement of  the  trial,  the  granting  or  refusal  of  the 
application  is  a  matter  of  discretion. 

Allowing  an  answer  to  be  filed  after  the  statutory 
time  for  answer  has  expired,  where  no  default  has 
been  taken,  is  not  error. 

The  terms  upon  which,  and  the  time  within  which, 
an  answer  shall  be  filed,  after  a  demurrer  to  the 
complaint  has  been  overruled,  is  a  matter  of  dis- 
cretion.*^ 

The  allowance  of  the  filing  of  a  second  appeal 
bond,  when  the  former  one  is  deemed  insufficient, 
and  the  admission  of  evidence  in  rebuttal,  which 
should  properly  have  been  offered  in  chief,  is  dis- 
cretionary.^ 

So  trial  courts  have  a  large  discretion  in  awarding 
or  refusinor  a  motion  for  a  new  trial,  or  in  denying  or 


'  Brown  v.  Nachtrleb.  6  Colo.  517  ;  Alden  v.  Campbell,  7  Colo.  87- 
-Sieber  v.  Frink,  7  Colo.  148;  Corson  v.  Natheny,  9  Colo.  215. 
^Commissioners  v.  King,  9  Colo.   542;  McKee  v.  Mining  Co.,  8 
Colo.  394;   Buckingham  v.  Harris,  10  Colo.  463. 


Challenge  to  Juror.  193 

allowing  a  motion  to  require  plaintiff  to  give  secu- 
rity for  costs.^ 

Also  in  allowing  pleadings  to  be  amended,  when 
the  case  is  returned  to  it  from  the  appellate  court, 
and  in  the  amendment  of  pleadings  during  the  pro- 
gress of  the  trial.^ 

Hence  when  assigning  error  on  matters  of  discre- 
tion, it  is  indispensable  that  an  abuse  of  discretion  be 
shown,  which  tends  to  the  injury  of  the  party  assign- 
ing error,  or  the  error  will  not  be  tenable. 

Error  in  Sustaining  or  Overruling  a  Challenge 

TO  A  Juror. 
Sec.  121.  When  a  civil  cause  is  tried  by  a  jury, 
error  may  be  committed  by  the  court  in  allowing  or 
overruling  a  challenge  to  a  juror  for  cause.  But  it 
is  necessary  to  sustain  this  ground  of  error,  that  the 
sustaining  or  overruling  of  the  challenge  be  shown 
to  have  been  prejudicial.  The  Code  prescribes  the 
grounds  on  which  a  challenge  to  a  juror  for  cause 
may  be  allowed.  But  to  sustain  error  in  overruling 
a  challenge  for  cause,  it  must  appear,  from  the  record, 
that  the  requirements  of  the  statute,  prescribing  what 
shall.be  a  good  ground  of  challenge,  have  been  disre- 
garded, otherwise  the  ruling  of  the  court  will  be  sus- 
tained. Unless  the  record  shows  a  gross  abuse  of 
discretion  in  determining  the  question  of  enmity  or 

1  Cooper  V.  McKeen,  ii  Colo.  41  ;  Cook  v.   Doud,   14  Colo.  483; 
Knight  V.   Fisher,    15   Colo.    176;  Horn  v.  Reitler,   15  Colo.   316; 
Sevmour  v.  Fisher,  16  Colo.  189. 
25 


194  Practice  in  Courts  of  Review. 

bias  of  the  juror  challenged  the  appellate  court  will 
not  review  the  case  on  that  ground.^ 

But  the  mere  fact  that  the  court  sustained  or  over- 
ruled a  challenge  erroneously  is  no  ground  of  error. 
If  the  cause  has  been  tried  by  a  competent  jury, 
against  no  one  of  whom  any  good  cause  of  a  chal- 
lenge exists,  no  error  can  be  maintained  in  a  civil 
case.  But  the  rule  is  somewhat  different  in  criminal 
cases.  In  such  cases,  if  the  court,  by  improperly 
sustaining  a  challenge  for  cause,  depletes  the  panel, 
or  list  of  jurors,  which  the  statute  requires  shall  be 
furnished  each  prisoner  on  his  arraignment,  and 
thereby  compels  the  resort  to  talesmen,  error  preju- 
dicial to  the  prisoner  is  committed."  The  reason  of 
this  is,  that  the  statute  gives  the  list  of  jurors  to  en- 
able the  prisoner  to  inquire  into  the  character,  dis- 
position and  associations  of  each  juror,  and  thereby 
enable  him  to  act  judiciously  in  challenging  and  ex- 
cusing jurors.  Of  this  privilege  he  is  deprived  when 
talesmen  are  called.  But  the  court  will  not  commit 
error  by  allowing  excuses,  or  permitting  a  juror  to 
absent  himself,  or  be  excused,  if  a  competent  jury 
can  be  obtained  from  the  panel  or  list  furnished  the 
accused.  The  question  to  be  determined  in  assigning 
error  is  did  the  challenge  sustained  so  deplete  the 
panel  as  to  compel  a  resort  to  talesmen  ? 

So  error  may  be  committed  in  overruling  a  chal- 


'  RR.  V.  Moynahan,  8  Colo.  56;  Collins  v.  Burns,  16  Colo.  7. 
'^Stratton  v.  People,  5  Colo.  276;  Mooney  v.  People,  7  Colo.  218. 


Instructions.  195 

lenge  to  a  juror,  if  it  clearly  appear  that  he  is,  for 
any  legal  reason,  disqualified  to  sit  in  that  particular 
case  and  he  does  act  as  a  juror  in  that  case.  But 
this  must  be  made  to  clearly  appear,  otherwise  the 
presumption,  in  case  of  doubt,  will  be  that  the  court 
acted  correctly.  Where  the  court  determines  the 
fact  of  a  juror's  indifference  on  examination  on  his 
voir  dire,  such  determination  is  not  reviewable  on 
error,  and  is,  therefore,  not  the  subject  of  an  assign- 
ment of  error. 

So  a  failure  to  furnish,  in  a  criminal  case,  to  the 
defendant  a  list  of  jurors  or  witnesses  at  the  time  of 
the  arraignment  is  not  error,  if  such  list  have  been 
furnished  in  sufficient  time  to  enable  the  defendant 
to  have  the  benefit  of  it,  as  the  law  contemplates.^ 

Other  errors  may  be  committed  in  relation  to  im- 
paneling the  jury,  but  all  such  errors  must  appear 
to  have  been  prejudicial  to  the  party  assigning  them 
■for  error,  or  the  assignment  will  be  unavailable. 

Errors  in  Instructions  to  the  Jury. 

Sec.  122.  The  Code  provides  that  "special  instruc- 
tions to  the  jury  shall  be  reduced  to  writing,  shall  be 
numbered  and  signed  by  the  attorney  who  presents 
them,  and  be  delivered  to  the  court." 

On  this  part  of  the  Code  section,  error  can  only 
be   assigned   on  the  giving  of  instructions  orally,  as 

*  Solander  v.  People,  2  Colo.  48;    Jones  v.  People,  2  Colo.  351  ; 
Minich  v.  People,  8  Colo.  448. 


196  Practice  in  Courts  of  Review. 

the  numbering  and  signing  of  the  instructions  is 
merely  directory,  and  the  faikire  to  number  and  sign 
can,  under  no  circumstances,  be  prejudicial. 

It  Is  held  to  be  error  for  the  court  to  verbally  di- 
rect the  jury  to  find  for  one  of  the  parties,  If  there  be 
evidence  sufficient  to  take  the  case  to  the  jury.  In 
such  case  the  court  ought  to  give  proper  instructions 
In  writing,  and  leave  it  to  the  jury  to  decide  on  the 
preponderance  of  the  evidence. 

It  Is  not  error  for  the  court  to  refuse  to  sfive  In- 
structlons  In  a  civil  case,  when  they  are  not  numbered 
and  signed  by  counsel  as  the  statute  requires,  and 
presented  to  the  court  In  apt  time. 

In  assigning  the  giving  of  oral  Instructions  for 
error,  the  party  assigning  error  must  see  that  no 
stipulation  is  In  the  record,  by  which  oral  Instructions 
were  consented  to,  as  such  a  stipulation  is  a  waiver 
of  the  statutory  requirement.^ 

The  Criminal  Code  also  requires  that  the  Instruc- 
tions be  given  In  writing,  but  does  not  require  that  they 
be  signed  by  the  attorney  and  numbered,  as  in  the 
Civil  Code.  The  same  decisions.  In  relation  to 
giving  of  instructions  in  writing,  will,  therefore,  apply 
equally  to  civil  and  criminal  cases,  though  the 
Criminal  Code  seems  to  require  a  request  that  they 
be  given  In  writing,  and  to  imply  the  right  to  give 
oral  Instructions,  If  written  instructions  are   not  re- 


'  Montelius  v.  Atherton,  6  Colo.  224;  Lee  v.  Stahl,  9  Colo.  208 ; 
Gibbs  V.  Wall,  10  Colo.  160;  Schoolfield  v.  Houle,  13  Colo.  394. 


Instructions.  197 

quested.  But  the  practice  is  the  same  in  both  classes 
of  cases.^ 

Instructions  must  be  based  on  the  state  of  facts 
which  is  developed  by  the  evidence  in  the  case. 
Hence  instructions  based  on  evidence,  which  has  not 
been  properly  brought  up  in  the  bill  of  exceptions, 
are  ground  for  reversal,  if  they  appear  to  tend  to  the 
prejudice  of  the  party  assigning  error,  for  the  appel- 
late court  cannot  presume  that  there  was  evidence  to 
justify  the  giving  of  the  instruction.  Instructions 
must  also  be  appropriate  to  the  pleadings  and  the  is- 
sues submitted  to  the  jury.  Hence  it  is  not  error  to 
refuse  an  instruction,  inapplicable  to  the  issues  tried.- 

Error  cannot  be  maintained  as  against  all  the  in- 
structions given  for  either  party,  unless  every  one  is 
erroneous,  or  no  one  applicable  to  the  case.  Hence 
when  assieninof  error  on  instructions,  error  should  be 
assigned  specifically  to  each  instruction,  which  is 
claimed  to  be  erroneous. 

It  is  further  to  be  noted  that  where  the  same  prin- 
ciple is  stated  in  several  instructions,  it  is  not  the  duty 
of  the  court  to  give  more  than  one  instruction  covering 
the  same  point  in  all  respects,  especially  if  the  giving 
of  both  instructions  may  tend  to  mislead  the  jury.'^ 

1  Mills'  Stat.,  §  1468. 

■^  Lawson  v.  Van  Auken,  6  Colo.  52;  Piela  v.  People,  6  Colo.  343; 
Rara  Avis,  etc..  Co.  v.  Bouscher,  9  Colo.  383;  Williams  v.  Mellor. 
12  Colo,  i;  Hill  V.  Corcoran,  15  Colo.  270;  DeVotie  v.  McGerr,  15 
Colo.  467. 

3  McKee  v.  Mining  Co. ,  8  Colo.  396;  Minich  v.  People,  8  Colo.  456; 
Boulder  v.  Fowler,  11  Colo.  396;  Dozenbach  v.  Raymer,  13  Colo. 
454;  Johnson  v.  Jones,  16  Colo.  138. 


198  Practice  in  Courts  of  Review. 

It  will  sometimes  happen  that  the  instructions  given 
are  conflicting,  but  that  error  may  be  maintained,  it 
must  appear  that  such  conflict  may  have  occasioned 
prejudice  to  the  party  assigning  error.  If,  taking  the 
charge  as  a  whole,  it  does  not  appear  that  the  party 
assigning  error  is  materially  prejudiced,  error  is  not 
maintainable. 

It  is  error  for  the  trial  court  to  assume  in  his  in- 
structions to  the  jury  the  existence  of  material  facts, 
when  their  existence  is  in  issue  and  controverted  in 
the  evidence.^ 

When  assigning  error  on  specific  instructions,  the 
party  must  keep  in  mind  the  rule  adopted  by  the 
Supreme  Court,  that  each  instruction  is  to  be  consid- 
ered in  connection  with  the  entire  charge  to  the  jury  ; 
and  if,  taking  the  whole  charge  as  a  whole,  the  court 
is  satisfied  that  the  jury  was  not  improperly  instructed 
as  to  any  material  point  in  the  case,  the  judgment 
will  not  be  reversed  on  account  of  an  erroneous  in- 
struction.^ 

This  is  on  the  ground  that  such  erroneous  instruc- 
tion  could  not  have  been  prejudicial  to  the  party. 
But  an  instruction  is  fatally  defective,  which  contains 
one  correct  and  one  incorrect  proposition,  respecting 
the  legal  effect  of  the  evidence  produced  on  the  trial, 

1  Gaynor  et  al.  v.  Clements,  16  Colo.  209;  Overland  M.  &  E.  Co. 
V.  Carrol,  7  Colo.  44;  Boulder  v.  Fowler,  11  Colo.  396;  Nuckolls  v. 
Gaut,  12  Colo.  361  ;  Patrick,  etc.  v.  Skoman,  i  Colo.  App.  323. 

■  Mining-  Co.  v.  Bank,  2  Colo.  565;  Thatcher  v.  Rockwell,  4  Colo. 
375;  McClelland  v.  Burns,  5  Colo.  390;  Dozenback  v.  Raymer,  13 
Colo.  544- 


Instructions.  199 

and  tells  the  jury  that  if  the  evidence  sustains  either 
proposition  the  verdict  must  be  for  the  plaintiff.  It 
renders  it  impossible  to  know  upon  what  finding  of 
facts  the  verdict  is  based.  So  where  the  charge  in  a 
criminal  case  contains  one  important  correct  legal  prop- 
osition, and  in  another  an  incorrect  and  conflicting 
proposition  on  the  same  subject,  it  cannot  be  said  that 
the  error  is  avoided,  for  it  is  impossible  to  know  upon 
which  proposition  the  jury  relied.  To  prevent  re- 
versal for  error  in  the  charge,  it  must  appear  that  the 
prisoner  could  not  have  been  prejudiced  by  such  er- 
ror.^ 

Instructions  given  at  the  request  of  the  party  as- 
sio-ninsf  error  cannot  be  made  available  to  him  as  an 
error.  But  if  the  instructions  asked  by  him  are 
modified  or  changed  by  the  court  in  any  material  re- 
spect he  may  assign  error  as  to  such  modification  or 
change. 

In  regard  to  assignments  of  error  on  Instructions 
the  Supreme  Court  has  adopted  the  following  rule: 

"  When  the  error  alleged  Is  to  the  charge  of  the 
court  the  part  of  the  charge  referred  to  shall  be 
quoted  totidem  verbis  In  the  specifications  of  error. 
But  where  the  charge  is  divided  into  separate  para- 
oraphs  or  Instructions  which  are  dulv  numbered  as 
prescribed  by  the  Code,  and  one  or  more  of  such 
paragraphs    Is  assigned   for  error,  It    shall  be    suffi- 


'  Mackev  v.  People,  2  Colo.  13;  Clare  v.  People,  9  Colo.  125;  An- 
derson V.  Bartels.  7  Colo.  256. 


200  Practice  in  Courts  of  Review. 

dent  in  the  assignments  of  error  to  designate  the 
part  of  the  charge  referred  to,  by  giving  the  number 
prefixed  to  such   paragraph   or  instruction  assigned 

for  error."^ 

Besides  the  errors  above  referred  to  there  are 
many  other  errors  which  may  be  assigned,  if  prop- 
erly brought  up  by  bill.  The  general  rule  is,  that  if 
the  error  is  not  found  in  the  record  proper,  it  will 
not  be  noticed  unless  found,  properly  excepted  to, 
in  the  bill  of  exceptions. 

The  party  may  assign  as  many  errors  as  he  pleases, 
but  no  errors  will  be  noticed  by  the  court  where 
the  assignment  •  does  not  comply  with  the  rules 
of  the  court.  An  oral  assignment  of  errors  is  not 
permitted.  Counsel  are  restricted  to  a  discussion  of 
the  errors  which  are  properly  assigned.  The  court 
does  not,  however,  usually  notice  errors  assigned, 
which  are  not  discussed  by  counsel  in  briefs  and 
arp-uments,  but  treats  them  as  abandoned  by  counsel. 
It,  however,  reserves  to  itself  by  rule  the  right,  m 
its  discretion,  to  notice  errors  not  assigned  or  dis- 
cussed in  the  briefs,  and  will  do  so  in  cases  where 
the  error  is  fatal,  though  not  called  to  the  court's  at- 
tention by  counsel.^ 

Though  the  appellate  court  does  not  discuss  in  its 
opinions  all  the  errors  assigned  by  counsel,'  all 
the  assignments  of  error  relied  upon  by  counsel  in 

'  Rule  13  of  Supreme  Court.  „■,,,» 

iiRule    15   of  Supreme   Court;    Seaton  v.  Rufif,  29  111.  App.  238: 
Patrick,  etc.  v.  Skoman,  i  Colo.  App.  323. 


Form  of  Assignment.  201 

the  argument  of  the  cause  receive  the  careful  con- 
sideration of  the  court.  If  not  alluded  to  in  the  opin- 
ion, it  is  either  because  the  assignment  is  deemed 
to  be  without  merit,  or  because  the  same  question  has 
been  frequently  adjudicated  by  the  court,  or  because, 
for  some  other  reason,  it  does  not  appear  to  be  import- 
ant that  that  question  be  discussed  in  the  opinion.^ 

Form  of  Assignment  of  Errors. 
Sec.  123. 

State  of  Colorado.  ^'^  ^^'^ Court 

To  the Term,  18 — , 


A B ,    Plaintiff  in  Error, 


vs. 


C D ,    Defendant   in    Em 


■or. 


Comes  now  the  plaintiff  in  error,  above  named,  and  says,  that  in 
the  record  and  proceedings  aforesaid  there  is  manifest  error,  in  this  : 

First.  The  trial  court  was  ivithout  jurisdiction  of  the  subject- 
matter,  it  being  the  title  to  real  estate,  no  part  of  which  is  situate  in 
the  county  of . 

Second.  The  trial  court  was  ivithout  jurisdiction  of  the  person 
of  the  defendant,  it  appearing  by  the  record  that  no  service  of  sum- 
mons has  been  had  upon  him,  and  no  general  appearance  was  entered 
by  or  for  him. 

Third.  The  complaint  filed  in  the  action  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action  against  this  plaintiff  in  error. 

Fourth.  The  trial  court  erred  in  allowing  plaintiff's  motion  for 
judgment  on  the  pleadings. 

Fifth.  The  trial  court  erred  in  denying  this  plaintiff'' s  motiofi 
for  a  continuance,  on  the  ground  of  the  absence  of  witnesses  ivhose 
personal  presence  at  the  trial  is  shown  to  be  indispensable  by  the  af- 
fidavits filed  and  found  on  folios  20  to  50  of  record. 

'  Sellar  v.  McClelland,  2  Colo.  532;  Murphy  v.  Hobbs,  8  Colo.  130. 
26 


202  Practice  in  Courts  of  Review. 

Sixth.  The  trial  court  erred  in  overruling  this  plaintiff's  chal- 
lenge to  juror ,  his  testiinony  on  his  voir  dire  clearly  showing 

him  to  be  incompetent,  as  found  in  record,  folios . 

Seventh.    The  trial  court  erred  in  admitting  the  testimony  of 

over  the  objection  of  this  plaintiff  in  error,  as  shoivn  in  record, 
folios . 

Eighth.  The  trial  court  erred  in  giving  instruction  No.  — ,  found 
in  record^  folio . 

JVinth.  The  trial  court  erred  in  modifying  instruction  No. — , 
asked  by  plaintiff  in  error,  found  in  folio . 

Tenth.  The  trial  court  erred  in  rendering  judgjnent  on  the  verdict 
of  the  jury. 

Wherefore  plaintiff  in  error  prays  this  court,  that  by  reason  of 
the  several  errors  aforesaid  the  judgment  aforesaid  may  be  re- 
versed, set  aside  and  hereafter  held  for  naught. 


Attor7iey  for  plaintiff  in  error. 

The  rules  of  the  courts  require  that  the  assign- 
ment of  errors  be  signed  by  an  attorney  of  the  court. 

If  the  assignment  be  in  a  case  appealed,  the  party 
appealing  must  be  designated  as  the  "appellant," 
and  the  adverse  party  as  the  "  appellee." 

When  the  assignment  of  errors  is  completed  and 
attached  to  the  transcript,  the  plaintiff  in  error  will 
file  the  transcript  in  the  office  of  the  clerk  of  the 
court  of  review,  if  it  have  not  been  already  filed. 
When  it  has  been  filed  in  the  first  instance,  as  is 
sometimes  done,  before  the  assignment  of  errors  is 
attached  thereto,  Rule  30  allows  the  record  to  be 
withdrawn  by  leaving  a  receipt  therefor  with  the 
clerk,  and  retained  for  eight  days,  without  an  appli- 
cation to  the  court  for  leave  to  do  so. 


The  Scire  P'acias.  203 


CHAPTER  VII. 
The  Scire  Facias. 

Sec.     124.  Of  scire  facias  on  writ  of  error —  form  of. 

125.  Scire  facias  —  when  to  be  made  returnable. 

126.  'S)QXY\CQ  oi  scire  facias  by  publication. 

127.  Forms  of  affidavits. 

128.  Writs  of  error  amendable. 

Of  Scire  Facias  on  Writ  of  Error. 

Sec.  124.  As  a  writ  of  error  is  held  by  the  Supreme 
Court  to  be  a  new  suit,  thouQ^h  based  on  the  record 
of  the  trial  court,  and  as  the  defendant  in  error  is 
not  bound  to  follow  the  case  into  the  court  of  review, 
as  he  is  in  case  of  an  appeal  from  the  judgment  of 
the  trial  court,  it  becomes  necessary  to  bring  the 
defendant  in  error  within  the  jurisdiction  of  the 
court  of  review  by  the  service  of  process  upon  him. 
It  is  essential  that  he  have  notice,  in  some  manner 
provided  by  law,  of  the  commencement  of  the  pro- 
ceedings in  error,  so  that  he  may  defend  against 
them  if  he  desire  to  do  so. 

Hence  the   Code  provides  that, 

"In  all  cases  in  which  a  writ  of  error  shall 
be  issued,  if  the  defendant  in  error  have  not  en- 
tered   his    appearance    to    the    cause     in    error    in 


204  Practice  in  Courts  of  Review. 

the  appellate  court,  the  clerk  of  the  appellate 
court  shall  also  issue  a  scire  facias,  or  summons 
in  error,  to  hear  errors  directed  to  the  sheriff  or 
other  officer  of  the  proper  county,  where  the  defend- 
ant or  defendants  in  error  reside  or  may  be  found, 
commanding  him  to  summon  the  defendant  or  de- 
fendants in  error  to  appear  at  the  next  term  of  the 
appellate  court,  and  show  cause,  if  any  he  or  they 
have,  why  the  judgment  or  decree  mentioned  in  the 
writ  of  error  should  not  be  reversed."^ 

Form  of  Scire  Facias. 

The  form  of  the  scire  facias  used  in  the  courts  of 
review  of  Colorado  is  as  follows  : 


State  of  Colorado 
Court. 


1 


The  People  of  the  State  of  Colorado,  To  the  Sheriff  of County, 

Greeting  : 
Because  in  the  records  and  proceedings,  and  also  in  the  rendition 

of  the  judgment,  in  a  suit  which  was  lately  in  the Court  of 

county,   before   the  judge   thereof,  between plaintiff  a?id 

defendant,  manifest  error  hath  intervened,  as  it  is  said,  to  the 

great  injury  of  the  said ,  as  by  his  complaint  we  are  informed;  a 

transcript  of  lohich  said  judgment  we  have  caused  to  be  brought  into 

our {Court),   of   the   State  of  Colorado,   before   the  justices 

thereof,  to  correct  the  error  in  the  same,  if  any   there  be,   in  due 
form  and  manner,  according  to  lata. 

We,  therefore,  command  you  to  summon  the  said to  be  and 

appear  before  the  justices  of  our  said {Court),  at  the  next  term 

'  Code,  §  405. 


The  Scire  Facias.  205 

thereof,  to  be  holdeti  at  Denver,  in  said  State,  on  the  secoiid  Monday 

in  the  month  of ,  A.  D.  18 — ,  to  hear  the  record  and proceedijigs, 

and  errors  assig?ied,  if  he  shall  think  fit,  and  show  cause,  if  any  he 
can,  why  the  said  judgment  shall  not  be  reversed  for  the  causes  afore- 
said; and  further  to  do  attd  receive  what  our  said  court  shall  order 
and  adjudge  in  this  behalf.  And  have  you  then  and  there  this  ivrit, 
and  make  return  thereon  in  what  mantier  you  execute  the  same. 

Witness   the   Honorable  ,   Chief  Justice  of  our   said 

(Court),  and  the  seal  thereof  at  Denver,  this  day  of , 

A.  D.  18— 


Clerk. 

Unlike  the  summons,  provided  in  the  Code  for 
other  courts  of  record,  the  scire  facias  is  directed  to 
the  sheriff  or  other  officer  to  serve  and  not  to  the 
defendant  in  error.  It  is,  however,  to  be  served  by 
him  in  the  usual  mode  of  serving  a  summons  at  com- 
mon law,  that  is,  by  reading  and  exhibiting  the  orig- 
inal writ  to  the  person  served.  If,  however,  the  sum- 
mons be  served  in  the  mode  designated  in  the  Code, 
it  will  seem  that  no  valid  objection  will  lie  to  such 
mode  of  service,  since  the  object  of  the  service, 
which  is  to  notify  the  defendant  in  error  of  the  time 
and  place  of  the  hearing  on  error,  is  attained  by 
either  mode  of  service,  if  the  copy  of  the  writ  reaches 
the  defendant  in  sufficient  time  to  enable  him  to  pre- 
pare to  defend,  should  he  desire  to  do  so. 

The  Code  also  provides  that: 

"  Where  there  are  several  defendants  in  error,  who 
reside  in  different  counties,  the  plaintiff  in  error  may 


2o6  Practice  in  Courts  of  Review. 

have  separate  writs  of  error  issued  to  each  county  in 
which  one  of  the  defendants  in  error  resides  or  may 
be  found  "^ 

The  rules  that  govern  the  service  of  a  scire  facias 
are  in  substance  the  same  that  govern  the  service  of  a 
summons  as  they  existed  before  the  adoption  of  the 
Code,  the  Supreme  Court  not  having  adopted  any 
rule  by  which  the  provisions  of  the  Code,  which  di- 
rect the  manner  of  serving  a  summons,  are  made  ap- 
plicable to  the  service  of  a  scire  facias.  Hence  ser- 
vice by  leaving  a  copy  at  the  usual  place  of  residence 
of  the  defendant  in  error,  which  is  authorized  by  the 
Code  in  serving  the  summons  in  a  case  pending  in  a 
trial  court,  does  not  seem  to  be  an  authorized  mode 
of  serving  a  scire  facias,  under  either  the  Code  or  by 
any  rule  of  the  courts  of  review.  The  only  service, 
therefore,  which  would  appear  to  be  sufficient  to  em- 
power the  court  to  proceed,  unless  the  defendant  in 
error  enter  his  general  appearance,  is  personal  ser- 
vice on  him.  This  is  the  only  mode  of  service  au- 
thorized by  the  common  law. 

If  a  scire  facias  shall  not  be  served  before  the  re- 
turn day  mentioned  therein,  an  alias  or pluries  scire 
facias  may  be  issued  by  the  clerk  on  the  application 
of  the  plaintiff  in  error,  without  a  previous  applica- 
tion to  the  court  for  an  order  therefor.^ 


'  Code,  §  405. 

'  Rule  3  of  Supreme  Court. 


The  Scire  Facias.  207 

Scire  Facias  —  When  to  be  Made  Returnable.    . 

Sec.  125.  h  scire  facias,  or  summons  in  error,  if 
issued  ten  days  or  more  before  the  first  day  of  the 
next  term  of  the  appellate  court,  shall  be  made  re- 
turnable to  the  first  day  of  that  term.  If  issued  less 
than  ten  days  before  the  first  day  of  the  next  ensuing 
term,  it  may  be  made  returnable  to  any  day  of  that 
term.  No  scire  facias  shall  be  returnable  to  any 
Special  Term.^ 

It  follows,  therefore,  from  this  rule,  that  a  scire 
facias  cannot  be  made  returnable  in  less  than  ten 
days  from  the  date  of  its  issuance,  excluding  the  day 
on  which  it  is  issued.  The  return  day  is  of  import- 
ance in  connection  with  the  rule  requiring  the  plain- 
tiff to  file  abstracts  of  the  record.  Service  on  the 
defendant,  however,  is  essential,  before  any  action  in 
the  case  can  be  taken  affecting  him.  Hence  the  rule 
further  provides  that : 

"  If  the  writ  be  not  served  ten  days  before  the  re- 
turn day  thereof,  the  defendant  is  not  required  to  ap- 
pear in  obedience  thereto,  until  the  first  day  of  the 
term  succeeding  such  return  day."^ 

Service  of  Scire  Facias  by  Publication. 

Sec.  126.  There  are  many  cases  where  the  de- 
fendant is  not  a  resident  of  the  State  at  the  time   of 


1  Rule  2  of  Supreme  Court,  and  Rule  38. 
"  Rule  2  of  Supreme  Court. 


2o8  Practice  in  Courts  of  Review. 

suine  out  a  writ  of  error,  either  because  he  has  left 
the  State  since  the  rendition  of  the  judgment,  or  be- 
cause, thoueh  at  the  time  of  the  commencement  of  the 
action  in  the  trial  court  he  was  not  domiciled  within 
the  State,  service  was  had  upon  him  personally,  while 
found  within  the  State.  In  case  the  defendant  in 
error  is  the  defendant  in  trial  court,  and  it  not  be  pos- 
sible to  obtain  personal  service  of  the  scire  facias  on 
him,  it  becomes  necessary  to  resort  to  constructive 
service  by  publication  of  a  notice  in  some  newspaper. 
In  cases  in  the  courts  of  review,  the  Code  provides  : 
''  If  the  plaintiff  in  error,  or  other  person  for  him, 
shall  at  any  time  file  in  the  office  of  the  clerk  of  the 
Supreme  Court  an  affidavit,  setting  forth  that  the 
defendant  in  error,  First,  has  gone  out  of  the  State, 
so  that  process  cannot  be  served  upon  him ;  or, 
Second,  that  he  is  not  a  resident  of  the  State  ;  or, 
Third,  that  on  due  inquiry  he  cannot  be  found  ;  or. 
Fourth,  that  he  evades  service  of  process  ;  or.  Fifth, 
that  he  is  concealed  within  the  State ;  or.  Sixth,  that 
process  cannot  be  served  upon  him  ;  it  shall  be  the 
duty  of  the  clerk  to  cause  notice  to  such  defendant 
in  error  to  be  made  in  some  newspaper  published  in 
this  State,  setting  forth  the  pendency  of  the  writ  of 
error ;  the  names  of  the  parties  thereto ;  and  the 
time  when  the  scire  facias  may  be  returnable,  which 
notice  shall  be  published  for  four  consecutive  weeks, 
and  if  the  first  insertion  of  such  notice  shall  not  be 
at  least  sixty  days  before  the  return  day  of  the  writ 


The  Scire  Facias.  209 

of  error  the  cause  shall  be  continued  to  the  next  suc- 
ceeding term  of  the  Supreme  Court,  and  it  shall  be 
the  duty  of  the  plaintiff  in  error,  or  of  some  one  for 
him,  to  send  postpaid  by  mail  a  copy  of  such  notice 
to  the  defendant  in  error,  if  the  place  of  residence  of 
him  shall  be  known  to,  or  on  diligent  inquiry  can  be 
ascertained  by,  the  plaintiff  in  error.  Upon  filing  a 
certificate  of  the  publication  of  such  notice,  made  by 
the  publisher  of  the  newspaper  in  which  the  same 
shall  have  appeared,  together  with  an  affidavit  that 
copies  of  such  notice  have  been  sent  to  the  de- 
fendant in  error,  as  herein  provided,  or  that  the 
residence  of  such  defendant  is  unknown  to  and  can- 
not after  diligent  inquiry  be  ascertained  by  the 
plaintiff  in  error,  the  cause  shall  proceed  as  if  the 
defendant  in  error  had  been  personally  served  with 
process.^ 

Without  referring  to  the  duties  imposed  upon  the 
clerk  by  the  foregoing  section,  the  first  duty  imposed 
upon  the  plaintiff  in  error,  when  it  becomes  necessary 
for  him  to  obtain  service  of  the  scire  facias  by  publi- 
cation, is  to  file  "an  affidavit"  of  himself  or  of  some 
other  person.  Such  affidavit  must  state  some  one  of 
the  six  (6)  causes  for  which  the  personal  service  of 
the  writ  is  impracticable.  The  statute  requires  a 
positive  assertion  of  the  ground  on  which  the  publi- 
cation is  to  be  made,  and  an  affidavit  based  on 
information  and  belief  is  insufficient. 


'  Code,  §  405; 

27 


2IO  Practice  in  Courts  of  Review. 

No  prior  issuing  of  the  scire  facias  is  prescribed,  as 
is  required  in  case  of  a  summons,  and  a  return  of 
"  not  found "  thereon,  but  when  the  third,  fourth, 
fifth  and  sixth  grounds  are  rehed  on,  we  apprehend 
that  the  appellate  court  will  not  be  satisfied  with  the 
bald  statement  in  the  words  of  the  section  above 
cited.  The  court  will  require  a  statement  of  the 
efforts  made  by  the  party  to  ascertain  the  where- 
abouts of  the  defendant  in  error,  and  in  such  cases  it 
is  advisable,  if  not  necessary,  to  issue  a  scire  facias  to 
the  sheriff  of  the  county  of  the  State  in  which  de- 
fendant in  error  last  resided,  with  an  official  return  on 
the  writ  by  him  showing  what  efforts  were  made  by 
him  to  serve  the  writ  on  the  defendant  in  error. 
This  return  ought  to  be  supplemented  by  an  affidavit 
that  defendant  last  resided  in  such  county,  to  the 
knowledge  of  the  plaintiff  in  error,  or  sheriff.  The 
statute  does  not  require  this  to  be  done,  but  it  seems 
to  be  proper,  to  show  good  faith  on  the  part  of  the 
plaintiff  in  error.  In  similar  cases  under  the  Code  of 
California,  it  was  held  that  the  affidavit  should  nega- 
tive all  information  on  the  part  of  the  plaintiff,  and 
where  there  is  more  than  one  plaintiff,  on  the  part  of 
each  and  every  plaintiff,  as  to  where  the  defendant 
might  be  found,  and  also  that  plaintiff  obtained  any 
knowledge  of  the  defendant's  whereabouts  from  those 
of  whom  he  made  inquiry.  Where  it  is  stated  in  the 
affidavit  that  "on  due  inquiry  he  cannot  be  found," 
it  has  been  held  that   the  affidavit   should  state   the 


Publication  of  Scire  Facias.  211 

names  of  the  persons  of  whom  Inquiry  was  made,  and 
should  show  that  they  bore  such  relations  to  the  per- 
son inquired  for  that  they  would  probably  be  able  to 
make  known  his  whereabouts.^ 

If  the  ground  alleged  be  concealment,  such  conceal- 
ment must  be  for  the  purpose  of  avoiding  service  of  the 
writ.  The  affidavit  should  state  the  facts,  so  that  the 
court  may,  from  such  statement  of  facts,  determine 
that  defendant  conceals  himself,  and  that  such  conceal- 
ment is  for  the  purpose  of  avoiding  service  of  the  writ. 

While  the  court  does  not  pass  upon  the  sufficiency 
of  the  affidavit  in  the  first  instance,  and  the  clerk 
usually  accepts  the  affidavit  if  it  2L^^^2iX prima  facie 
sufficient,  yet  the  question  may  be  raised  on  a  mo- 
tion to  quash  the  notice  by  publication,  because  of  a 
defective  affidavit.  Upon  the  filing  of  the  affidavit 
the  clerk  prepares  the  notice,  and  designates  the 
newspaper  in  which  it  shall  be  published.  He  will 
usually  direct  its  publication  in  some  paper  published 
in  the  county  in  which  defendant  last  resided,  if  he 
can  ascertain  such  county  from  the  affidavit.  The 
court  will  presume  that  the  paper  designated  by  the 
clerk  was  the  one  most  likely  to  give  notice  to  the 
person  to  be  served  or  notified. 

The  statute  requires  that  the  notice  be  published 
for  four    consecutive  weeks.^     This   provision    does 


'  Braley  v.  Seaman,  30  Cal.  617. 

^"  A  week  "  is  a  definite  period  of  time,  commencing  on  Sunday 
and  ending  on  Saturday.  In  re  Tyson.  13  Colo.  490;  State  v.  Min- 
ing Co.,  5  Nev.  415  ;  Ronkendorf  v.  Taylor,  4  Pet.  361. 


212  Practice  in  Courts  of  Review. 

not  specify  how  many  times  in  each  week  the  notice 
shall  be  published,  but  as  it  is  usually  published  in 
a  weekly  paper,  it  is  not  of  much  importance  to 
specify  the  number  of  publications  in  each  week. 
But  it  has  been  held,  under  a  similar  provision,  that 
where  the  publication  is  in  a  paper  published  daily, 
that  the  notice  must  be  published  in  every  day's 
issue,  during  the  period  of  time  specified. 

The  Supreme  Court  of  Colorado,  in  Calvert  v. 
Calvert,  holds  that  the  term  "  weeks"  does  not  neces- 
sarily imply  four  weeks  of  seven  days  each,  and  that 
when  a  publication  is  ordered  for  four  consecutive 
weeks,  it  is  not  necessary  that  the  publication  be  on 
the  same  day  in  each  week. 

As  the  period  of  sixty  days,  mentioned  in  this  sec- 
tion, counts  from  the  first  publication  and  not  from 
the  last  publication,  as  in  case  of  a  summons,  the 
days  of  the  publication  do  not  appear  to  be  of  im- 
portance. 

The  next  duty  imposed  on  the  plaintiff  in  error  is 
to  send  a  copy  of  the  notice,  postpaid,  by  mail,  to  the 
defendant  in  error,  if  the  place  of  residence  of  the 
defendant  in  error  shall  be  known  to  the  plaintiff  in 
error,  or  on  diligent  inquiry  can  be  found.  In  order, 
therefore,  to  dispense  with  the  duty  of  mailing  a  copy 
of  the  notice,  the  plaintiff  in  error  must  show,  not 
only  that  he  was  at  the  time  ignorant  of  the  place  of 
residence  of  the  defendant,  but  also  that  he  was  unable 
by  diligent  inquiry  to  ascertain  such   place   of  resi- 


The  Scire  Facias.  213 

dence.  The  statute  does  not  prescribe  at  what  time 
such  notice  shall  be  sent,  but  by  analogy  with  a  sum- 
mons it  seems  that  the  copy  should  be  sent  at  any 
time  at  which  the  plaintiff  ascertains  the  place  of 
residence  of  the  defendant,  prior  to  the  filing-  of  the 
publisher's  certificate.  The  certificate  of  publication 
is  in  the  nature  of  a  sheriff's  return  of  service,  and  so 
long  as  such  certificate  of  publication  has  not  been 
made,  the  writ  is  deemed  to  be  in  the  hands  of  the 
party  for  service.  A  copy  ought,  therefore,  to  be 
mailed,  at  any  time  before  the  return  day  of  the  writ 
of  error,  if  prior  to  that  day  the  plaintiff  ascertains 
the  place  of  residence  of  the  defendant.  If  the 
plaintiff  mail  a  copy  of  the  notice  to  the  defendant 
in  error,  he  should  be  careful  to  state  that  "  all  post- 
age was  prepaid  "  in  the  affidavit  of  mailing,  since  a 
failure  to  so  state  in  the  affidavit  will  create  a  pre- 
sumption that  the  postage  was  not  prepaid,  and,  hence, 
that  the  letter  containing  the  notice  was  never  trans- 
mitted to  its  destination  by  the  postal  authorities.^ 

After  the  publication  of  the  notice  has  been  duly 
completed,  the  plaintiff  will  then  procure  from  the 
publisher  of  the  newspaper  a  certificate  showing  the 
date  of  the  first  publication  of  such  notice,  and  that 
it  was  published  in  his  paper  for  "  four  consecutive 
weeks,"  by  stating  the  first  and  last  publication 
thereof.     While  the  statute  requires  the  certificate  of 

'  Calvert  V.  Calvert,    15   Colo.    390;    Morton  v.  Morton,   16  Colo. 
358 ;  Brown  v.  Tucker,  7  Colo.  30  ;  O'Rear  v.  Lazarus,  8  Colo.  608. 


214  Practice  in  Courts  of  Review. 

the  publisher,  it  is  held  sufficient  that  the  certificate 
be  made  by  a  clerk  or  other  person  in  the  employ  of 
the  publisher,  who  makes  the  certificate  by  authority 
of  the  publisher.' 

In  relation  to  constructive  service  by  publication, 
the  Supreme  Court  of  Colorado,  in  Bekett  v.  Cuenin, 
15  Colo.  284,  says  : 

"  It  is  an  established  principle  in  all  courts  that  the 
method  of  acquiring  jurisdiction  by  publication  is  in 
derogation  of  the  common  law,  and  that  the  statutory 
requirements  must  be  successively  and  accurately 
taken  in  order  to  confer  on  the  court  jurisdiction  over 
the  defendant."  The  record  must  show  affirmatively 
the  taking  of  each  step  prescribed  by  the  statute, 
successively  and  accurately. 

The  copy  of  the  notice  and  certificate  of  service 
are  then  filed  in  the  clerk's  office,  and  thereupon  the 
proceedings  in  error  are  prosecuted  in  the  same  man- 
ner as  if  the  scire  facias  had  been  personally  served 
on  the  defendant.  The  filing  is  necessary  to  show 
that  court  has  jurisdiction. 

'  This  certificate  must  be  verified  b}'^  the  oath  of  the  person  who 
makes  it  for  the  pubHsher,  and  who  must  have  personal  knowledge 
of  the  fact  of  publication,  stated  therein.  The  affidavit  is  to  be  at- 
tached to  a  copy  of  the  published  notice. 


Affidavits.  215 

Forms  of   Affidavits.  ■ 
Sec.  127. 

State  of  Colorado  In  the {Court). 

To  the Term,  A.  T).,  18 — . 

{Title of  cause.) 

A.  B.,  being  by  me  first  duly  sworn,  on  his  oath  says,  that  he  is 
the  plaintiff  in  error  {or,  the  attor?iey  for  the  plaintiff  in  error), 
and  makes  this  affidavit  for  the  purpose  of  procuring  service  of  no- 
tice by  publication  on  defenda7it  in  error  of  the  pe?idency  of  these 
proceedings  in  error ;  that  defendant  in  error  for  some  time  past 

has  resided  at ,  in  the  State  of ,  and  is  not  at  this  time,  to 

the  knoivledge  or  information  of  affiaiit,  within  the  State  of  Colo- 
rado, for  which  reason  personal  service  of  the  scire  facias  cannot 
be  made  upon  him. 

Or,  that  C.  D. ,  one  of  the  defendajits  in  error  at  the  time  of  the 
proceedings  in  the  trial  coiirt  in  the  above  cause,  ti'as  a  resident  at 
,  in  the  State  of  Colorado,  but  since  that  time  has  removed  there- 
from, and  has  gone  out  of  the  State  of  Colorado,  but  that  affiant 
has  been  unable  to  ascertain  ivhere  he  now  resides  ;  that  E.  F.  and 
G.  If. ,  residents  at  that  place,  were  intimate  personal  friends  {or, 
are  near  relatives)  of  said  defendant  in  error,  and  that  this  affiant 
has  repeatedly  made  inquiries  of  them,  as  the  persons  most  likely  to 
know  where  he  now  resides,  and  that  each  of  the  said  persons  denies 
any  knoivledge  of  the  present  residence  of  said  defendant  in  error  ; 
that  affiant  k notes  of  jio  other  persons  who  are  or  may  be  able  to  give 
him  inforfnation  as  to  the  prese?it  residence  of  defendant  in  error. 

Or,    that  this   affiant,    on   the day   of ,    A.    D.    18 — , 

caused  a  writ  of  scire  facias  to  be  placed  in  the  hands  of  the  sheriff 

of county,   i?i  the  State  of  Colorado,  that  being  the  county  in 

which  the  said  defendant  in  error  last  resided,  to  the  knowledge  and 
best  information  of  affiant ;  and  that  said  sheriff  has  made  a  re- 
turn on  said  7vrit :  "  Not  found ;  "  that  affiant  is  informed  by  said 
sheriff  that  he  has  repeatedly,  while  said  writ  was  in  his  hands  for 
service,  called  at  the  usual  place  of  abode,  ajid  usual  place  of  bust- 


2i6  Practice  in  Courts  of  Review. 

ness  of  said  defendant  in  error,  and  also  made  inquiries  or  him  at 
his  usual  places  of  resort,  and  has  been  unable  to  make  personal  ser- 
vice of  the  writ  on  him  ;  that,  therefore,  affiant  alleges  that  defend- 
ant in  error  evades  serince  of  said  writ  on  him. 

The  foregoing  forms  may  be  modified  to  suit  the 
particular  circumstances  of  the  case. 

Certificate  of  Publication. 

/,  A.  B.,  do  hereby  certify  that  I  am  the  publisher  of  the ,  a 

weekly  newspaper,  published  once  in  each  week  at ,  in  the  county 

of ,  in  the  State  of  Colorado ;  that  the  notice,  a  true  copy  of 

which  is  hereto  attached,  was  published  in  said  neivspaper,  and  in 
each  and  every  copy  of  each  issue  of  the  same  for  the  period  of  four 
consecutive  7veeks,  and  that  the  first  publication  thereof  was  in  the 
issue  published  on  the day  of ,  A.  D.  iS — . 


Subscribed  and  sworn  to  before  me,  )  Publisher, 


this day  of i  S- 


Clerk. 

Affidavit  of  Mailing. 


A B 

vs. 
C D . 


A.  B.,  being  duly  sworn  on  his  oath,  says,  that  he  did,  on  the 

day  of ,  A.    D.  i8 — ,  inclose  a  true  copy  of  the  notice  hereto 

attached,  in  a   sealed  envelope,  addressed  to  the  defendant  in  error, 

C.  D. ,  at ,  ///  the  county  of ,  and  State  of ,  that  being 

the  place  of  residence  of  said  defendant  in  error,  and  did  pay  all 
the  postage  by  statnps^  which  is  required  to  be  paid  thereon,  and  did 
then  deposit  the  said  sealed  letter  in  the    United  States  post-office  at 

,  in  the  State  of  Colorado  ;  or,  did  deliver  said  sealed  letter  to  a 

letter  carrier  in  the  employ  of  the  United  States  Postal  Department ; 


Writs  of  Error  Amendable.  217 

OR,  did  deposit  said  sealed  letter  in  a  United  States  postal  letter  box 
in  the  said  city  of  Denver,  as  authorized  by  the  U.  S.  postal  laws. 


Subscribed  and  sworn  to.  etc. 

It  is  to  be  noted  here,  that  the  statute  does  not  im- 
pose on  the  clerk  of  the  court  of  review  the  duty  of 
maihng  the  notice,  as  it  does  in  the  cases  of  service 
by  publication  in  cases  pending  in  trial  courts.  The 
mailing  may,  therefore,  be  done  by  any  competent 
person,  and  his  affidavit  of  such  mailing,  if  full  and 
satisfactory,  will  be  sufficient  proof  of  a  compliance 
with  the  requirement  of  the  statute  in  that  respect. 

Writs  of  Error  Amendable. 
Sec.  128.  All  writs  of  error  shall  be  amendable, 
and  all  writs  of  error,  wherein  there  is  any  variance 
from  the  original  record,  or  any  other  defect,  may  be 
amended  and  made  agreeable  to  such  record  by  the 
respective  courts  to  which  such  writs  of  error  are  re- 
turnable.^ 
■  These  errors  can  occur  only  when  the  writ  of  error 
is  issued  before  the  transcript  of  the  record  is  pro- 
cured and  filed  in  the  appellate  court.  They  are 
usually  errors  in  the  names  of  the  parties,  errors  in 
the  term  of  the  trial  court,  and  such  like  defects.  The 
duty  of  seeing  that  these  errors  are  duly  corrected 
lies  upon  the  plaintiff  in  error,  as  the  defendant  in 
error  can  only  reach  them  by  attacking  the  scire  facias 
and  has  nothing  whatever  to  do  with  the  writ  of  error. 

'  Code,  §  406. 

28 


2l8  i^RACTICE   IN   COURTS  OF   REVIEW 


CHAPTER  VIII. 
Procedure  by  the  Defendant  in  Error. 

Sec.  129.  Appearance,  entry  of. 

130.  Of  motions. 

131.  Procedure  on  motions. 

132.  Motions  must  be  made  in  apt  time. 

133.  Motion  to  dismiss  writ  of  error. 

134.  Pleas  before  joinder  in  error. 

135.  The  joinder  in  error. 

136.  Of  cross-errors. 

137.  Supplemental  transcript  of  the  record. 

138.  Suggestion  of  diminution  of  the  record. 

139.  Special  pleas  to  the  assignment  of  errors. 

140.  The  issue  made  by  the  joinder  in  error. 

141.  Of  reversible  errors. 

142.  Instances  of  reversible  error. 

143.  Non-reversible  errors,  because  raised  in  appellate  court  in 

the  first  instance. 

Appearance  —  Entry  of. 
Sec.  129.  A  defendant  in  error,  upon  whom  the 
writ  of  scire  facias  has  not  been  served,  may  enter 
his  appearance  to  the  proceedings  in  error,  and  upon 
five  (5)  days'  notice  to  the  plaintiff  in  error,  may 
proceed  as  if  he  had  been  duly  served  with  the  scire 

facias} 

This   rule   of   the  Supreme  Court  is  intended   to 
apply  to  a  "  general  appearance  "  by  the  defendant. 

'  Rule  2  of  Supreme  Court. 


Appearance. 


219 


It  is  intended  to  substitute  the  entry  of  appearance 
for  the  service  of  the  scire  facias  on  the  defendant,  if 
the  writ  have  been  issued.  If  no  writ  have  been 
issued,  such  entry  of  appearance  will  be  a  waiver  of 
the  issuance  of  the  writ. 

The  appearance  of  a  defendant  in  error  may  be 
either  general  or  special. 

A  special  appearance  is  that  appearance  which  the 
defendant  makes  to  the  proceeding  in  error,  for  the 
sole  purpose  of  calling  in  question,  by  motion,  the 
rightfulness  of  the  action  of  the  court  in  its  attempt 
to  exercise  jurisdiction,  either  over  the  subject-matter 
or  over  the  person  of  the  defendant,  by  reason  of  a 
defect  or  irregularity  in  the  method  of  procedure  in 
the  case. 

As  in  all  other  courts,  a  person  entering  a  special 
appearance  in  the  court  of  review  must  expressly 
limit  his  appearance  to  the  sole  purpose  of  the  spe- 
cific motion  and  no  other.  Thus,  a  motion  made  for 
the  specific  purpose  of  procuring  a  dismissal  of  a 
writ  of  error  because  it  is  brought  after  the  expira- 
tion of  the  time  limited  by  statute  for  bringing  it, 
may  also  be  based  on  the  further  ground  that  the 
party  who  brings  the  writ  has  waived  his  right  to 
bring  error,  by  matter  appearing  on  the  record,  or 
other  good  grounds  for  asking  such  dismissal.  If, 
however,  he  ask  any  action  of  the  court  looking  to 
any  thing  else  except  dismissal,  he  will  be  held  to 
liave  entered  a  general  appearance. 


220  Practice  in  Courts  of  Review, 

A  general  appearance  is  a  voluntary  submission  to 
the  authority  of  the  court  for  all  the  purposes  of  the 
action  or  proceeding,  with  a  view  to  its  determining 
any  and  all  questions  which  may  properly  arise 
therein  and  require  its  determination  thereof. 

The  effect  of  the  entry  of  appearance  is  to  waive 
only  the  issuing  and  service  of  the  scire  facias,  and 
all  errors,  defects  or  irregularities  that  may  be  in  the 
writ,  or  have  occurred  in  its  service. 

The  defendant  in  error  is  not  compelled  to  proceed 
at  an  earlier  date  than  he  would  have  been  required 
to  proceed  had  the  scire  facias  been  actually  served 
on  him.  He  may  do  so  if  he  so  elect,  but  he  cannot 
be  required  by  the  court  to  do  so  before  the  pre- 
scribed time.  Thus,  he  will  have  fifteen  days  from 
the  day  of  entering  his  appearance  to  join  in  error, 
and  cannot,  against  his  consent,  be  ruled  to  join  in 
error  at  an  earlier  day.  The  entry  of  appearance  has 
the  same  and  no  other  effect  than  the  service  of  the 
scire  facias  on  him  would  have,  except  that  it  pre- 
cludes the  consideration  of  any  questions  affecting 
the  sufficiency  of  the  scire  facias,  or  of  its  service,  if 
it  have  been  served.  It  also  precludes  his  raising 
any  questions  affecting  the  jurisdiction  of  the  court 
over  his  person,  as  by  a  general  appearance  he  sub- 
mits his  person  voluntarily  to  the  jurisdiction  of  the 
court  for  all  the  purposes  of  that  proceeding.^ 

'Callahan  v.  Jennings,  16  Colo.  471  ;  Whale  v.  Fuller,  i  H.  Black- 
stone,  222  ;  Code,  §§  379-44. 


Appearance.  221 

The  five  (5)  days'  notice  provided  by  the  rule  is  a 
notice  to  the  plaintiff  in  error  that  the  defendant  has 
entered  his  general  appearance  to  the  proceeding  in 
error.  This  he  may  do  before  the  scire  facias  is  is- 
sued, or  before  it  is  served.  The  effect  of  such  en- 
try of  appearance  is  a  full  submission  and  recogni- 
tion of  the  jurisdiction  of  the  court  of  review  over 
his  person,  and  it  has  the  same  effect  as  to  jurisdic- 
tion of  his  person  as  if  the  scire  facias  \\2iA  been  duly 
and  legally  served  on  him.  The  notice  to  the  plain- 
tiff should  be  in  writing  and  served  by  copy.  Its  ef- 
fect will  be  merely  to  notify  the  plaintiff  that  the  de- 
fendant in  error  is  in  the  court  for  all  purposes,  and 
ready  to  take  proper  action  on  his  part. 

In  case  of  a  special  appearance  such  a  notice  will 
not  be  required  as  the  notice  of  motion,  for  the  pur- 
pose of  which  the  special  appearance  is  entered,  will 
be  sufficient. 

The  appearance  may  be  entered  In  writing  In  the 
followinor  form: 

o 

(  Title  of  cause. ) 

/,  the  above-named  defendatit  in  error,  do  hereby  etiter  my  appear- 
ance to  the  above  entitled  proceeding  in  error. 

Dated .  ,  , 

Defe7ida7it  in  error. 

This  when  properly  executed,  signed  and  dated 
should  be  filed  with  the  clerk  of  the  court  of  review, 
in  which  the  proceeding  in  error  is  commenced,  who 
will  indorse  a  file-mark  thereon,  and   thereafter  the 


222  Practice  km  Courts  of  Review. 

notice  prescribed  by  the  rule  may  be  served.  If, 
however,  the  defendant  join  in  error  on  the  record 
as  required  by  the  rides,  that  is  a  complete  general 
appearance,  of  which  the  plaintiff  in  error  must  take 
notice.  In  such  case  no  entry  of  appearance  other 
than  the  joinder  in  error  is  to  be  made.  If  a  special 
appearance  only  is  entered,  the  defendant  must  not 
join  in  error  until  after  the  questions  raised,  for 
which  the  appearance  is  restricted,  have  been  deter- 
mined by  the  court. 

Of  Motions. 

Sec.  130.  After  the  plaintiff  in  error  has  filed  his 
transcript  of  the  record  and  assignment  of  errors  in 
the  court  of  review,  and  the  scire  facias  has  been  is- 
sued and  served  on  defendant  in  error,  or  defendant 
has  entered  a  general  appearance  to  the  proceeding 
in  error,  the  defendant  is  required  by  the  rules  to  join 
in  error  within  fifteen  days  after  the  return  day  of 
the  scire  facias,  or  entry  of  appearances. 

But  the  writ  of  error  may  have  been  improperly 
brought,  or  there  may  be  defects  in  the  transcript,  or 
in  cases  of  appeals  the  appeal  bond  may  be  defective 
or  insufficient,  or  the  appeal  may  have  been  improp- 
erly allowed,  or  there  may  be  a  non-joinder  or  mis- 
joinder of  parties,  or  other  defects  that  the  defend- 
ant in  error  should  bring  to  the  attention  of  the  court, 
and  procure  their  correction  before  joinder  in  error, 
or  he  will  be  deemed  to  have  waived  them. 


Motions.  223 

All  such  applications  are  made  by  "  motion."  By 
rule  of  the  Supreme  Court  all  motions  shall  be  in 
writing;  that  is,  the  motion  and  the  grounds  upon 
which  the  motion  is  based  must  be  reduced  to  writinof.' 

Procedure  on  Motions. 

Sec.  131.  The  procedure  on  motions  is  substan- 
tially the  same  as  the  procedure  on  motions  in  other 
courts  of  record.  The  written  motion,  assigning  the 
reason  for  which  the  party  makes  his  application  to 
the  court  for  the  relief  asked  thereby,  should  be  prop- 
erly entitled  in  the  court  and  the  cause  ;  should  state 
specifically  what  order  of  the  court  it  applies  for;  the 
grounds  on  which  such  application  is  based,  and  be 
signed  by  the  attorney  of  the  party  who  makes  the 
application.  If  the  attorney  of  the  adverse  party 
have  entered  his  appearance,  a  written  notice  of  the 
filing  of  such  motion  and  of  the  tim.e  when  it  will 
be  called  to  the  attention  of  the  court,  with  a  copy  of 
the  motion,  is  served  on  the  adverse  party  or  his  at- 
torney, at  least  twenty-four  hours  before  the  time 
therein  designated  for  hearing  it.  When  the  motion 
is  vi\2iA^  ex  parte,  as  a  motion  for  leave  to  file  some 
omitted  paper,  or  for  some  action  of  the  court,  not 
affecting  the  rights  of  the  adverse  party,  and  in  cases 
wherein  the  adverse  party  has  entered  no  appearance, 
notice  of  the  motion  is  not  required.  No  motion  by 
the  defendant  in  error,  which  attacks  the  writ  of  error, 


'  See  chap,  on  "  Motions," /f5/. 


224  Practice  in  Courts  of  Review. 

will  be  entertained  by  the  court.  The  only  parties  to 
that  writ  are  the  plaintiff  in  error  and  the  clerk  of  the 
trial  court.  The  defendant  in  error  has  no  concern 
w^ith  that  writ.^  He  may  move  to  dismiss  the  pro- 
ceeding in  error,  but  he  cannot  call  in  question  the 
sufficiency  of  that  writ  in  any  respect. 

At  the  first  public  sitting  of  the  court,  after  the  filing 
of  the  motion,  application  is  made  in  open  court  by 
the  party  who  files  the  motion,  for  its  action  thereon. 
This  action  by  the  applicant  is  indispensable,  for  the 
presence  of  the  motion  on  the  files  of  the  court  does 
not  require  the  court  to  notice  the  same,  or  make  any 
order  in  relation  thereto,  unless  the  applicant  make 
an  oral  application  for  its  action,  during  a  public  sit- 
ting. If  such  application  be  not  made,  the  motion 
will  be  considered  as  withdrawn.^'  Motions  are 
usually  heard  by  the  court  at  its  public  sittings,  after 
the  announcement  of  its  decisions  on  cases  submitted 
for  final  hearing,  and  its  rulings  on  motions  thereto- 
fore heard. 

When  motions  are  based  on  matters  which  do  not 
appear  on  the  face  of  the  record,  the  motion  should 
be  supported  by  affidavits,  which  should  be  filed  with 
the  clerk,  and  copies  of  them  be  served  on  the  adverse 
party. 

Motions  do  not  ordinarily  suspend  the  operation  of 
the  rules  as  to  filinor  abstracts  and  briefs.      If   an   ex- 


1  Rule  29  of  Supreme  Court;  Vance's  Heirs  v.  Marone}%  3  Colo.  298. 
-  People  V.  Ah  Sam,  41  Cal.  650. 


Motions.  225 

tension  of  time  for  filing  abstracts  or  briefs  be  neces- 
sary, by  reason  of  the  motion,  such  extension  of  time 
must  be  asked  and  allowed  by  the  court  or  one  of 
the  justices  thereof.^ 

Motions  Must  be  Made  in  Apt  Time. 

Sec.  132.  It  is  a  general  rule  that  motions  and  ob- 
jections must  be  made  in  apt  time,  or  the  objections 
on  which  the  motion  is  predicated  will  be  deemed  to 
have  been  waived.  Thus,  where  a  motion  was  made 
to  strike  from  the  record  a  bill  of  exceptions,  after 
the  parties  had  joined  in  error,  the  Supreme  Court 
denied  the  motion,  holding  that  the  objection  to  the 
bill  of  exceptions  had  been  waived  by  the  failure  to 
make  the  motion  before  joining  in  error.  So  where 
it  was  contended  that  the  Supreme  Court  ought  not 
to  consider  the  testimony,  because  it  had  not  been 
brought  up  by  a  proper  bill  of  exceptions,  it  was  ruled 
that  the  objector  not  having  made  a  motion  to  strike 
out  the  objectionable  part  of  the  record  before  join- 
ing in  error  and  submission  of  the  cause,  the  objec- 
tion was  waived.^ 

It  is,  therefore,  important  that  all  objections  of  such 
a  nature  that  a  failure  to  make  them  in  apt  time 
will  be  treated  as  a  waiver  of  them,  should  be  made 
before  joinder  in  error. 

'  Rule  24  of  Supreme  Court. 

^Central  v.  Wilcoxen,  3  Colo.  570;  Learned  v.  Tritch,6  Colo.  579. 

29 


226  Practice  in  Courts  of  Review. 

Of  Motions  to  Dismiss  Writ  of  Error. 

Sec.  133.  The  first  motion  in  order,  which  the  de- 
fendant in  error  may  make,  is  a  motion  to  dismiss 
the  writ  of  error.  The  grounds  on  which  a  motion 
to  dismiss  will  lie  are  : 

First.  When  a  writ  of  error  does  not  lie.  Thus 
no  writ  of  error  will  lie  if  the  judgment  complained  of 
be  not  a  final  judgment.      See  ante,  pp.  86-89. 

So  where  the  lesrislature  had  abolished  the  writ  of 
error,  and  substituted  an  appeal  as  the  sole  procedure 
by  which  a  judgment  might  be  reviewed,  no  right  to 
sue  out  a  writ  of  error  existed  during  the  existence 
of  that  law.  Afterward  the  legislature  passed  an 
act  reviving  the  right  to  a  writ  of  error,  and  under 
the  latter  act  a  writ  of  error  was  sued  out  to  a  judg- 
ment, rendered  while  the  provision  abolishing  the 
writ  of  error  was  in  existence.  It  was  held  that  as 
the  right  of  appeal  had  lapsed  under  the  then  exist- 
ing law,  and  as  no  right  to  a  writ  of  error  then  ex- 
isted, the  legislature  could  not  by  an  ex  post  facto 
law  give  a  right  to  a  writ  of  error,  in  cases  where 
the  right  did  not  exist  at  the  time  of  the  rendition  of 
the  judgment. 

So  it  is  held  that  a  right  to  a  writ  of  error  in  favor 
of  the  heirs  of  a  deceased  party  does  not  exist,  where 
the  real  estate  of  the  ancestor  and  the  property  rights 
of  the  heirs  therein  are  not  affected  by  the  judgment 
rendered  against  the  ancestor. 


Motion  to  Dismiss.  227 

So,  in  an  unpublished  decision,  very  recently  made 
by  the  Supreme  Court  of  Illinois,  it  is  held  that,  in 
a  criminal  case,  the  legal  representatives  of  a  plaintiff 
in  error  cannot  maintain  a  writ  of  error  to  reverse 
the  decision  of  the  trial  court,  however  erroneous  or 
unjust  it  may  be,  if  the  plaintiff  in  error  die  after 
the  suing  out  of  the  writ  of  error,  and  that  of  neces- 
sity, under  the  strict  rules  of  law  governing  such 
cases  at  common  law,  the  writ  of  error  will  abate 
and  the  judgment  of  the  trial  court  remain  in  full 
effect.  Under  this  rulincr  it  follows  that  the  leeal 
representatives  of  a  deceased  party  to  a  judgment 
in  a  criminal  case  cannot  be  made  parties  to  or  sue 
out  a  writ  of  error  in  such  a  case. 

So  where  the  court  set  aside  a  judgment  of  a  prior 
term,  on  motion  made  at  a  subsequent  term,  it  was 
held  that  such  order  was  not  a  "  final  judgment." 
Hence  no  writ  of  error  will  lie  thereto.^ 

A  second  ground  for  a  motion  to  dismiss  the  writ 
of  error  is  : 

That  the  time  prescribed  by  the  statute  for  bring- 
ing a  writ  of  error  has  expired.  Thus  in  the  case  of 
Clayton  v.  Cheely  et  als.  a  writ  of  error  was  sued  out 
on  February  24,  1880,  to  a  decree  of  the  Gilpin 
County  District  Court,  rendered  at  the  April  term, 
1868.  As  the  statute  then  required  the  writ  to  be 
sued  out  within  yft'^  years  from  the  date  of  the  judg- 

'  Higg-ins  V.  Brown,  5  Colo.  345  ;  Willoughby  v.  George,  5  Colo.  80; 
Willoughby  v.  George,  4  Colo.  22 ;  Clayton  v.  Cheely,  5  Colo.  537c. 


228  Practice  in  Courts  of  Review. 

ment  or  decree,  it  was  held  that  her  right  to  a  writ  of 
error  was  clearly  barred  by  the  lapse  of  time, 

So  in  the  case  of  Webster,  Assignee,  v.  Gaff  et  al. 
the  decree  complained  of  was  rendered  May  22, 
1878.  The  controversy  related  to  real  estate  belong- 
ing to  a  person  who  had  been  declared  a  bankrupt, 
under  the  then  existing  Bankrupt  Law  of  the  United 
States,  and  involved  property  of  the  bankrupt,  which 
was  vested  by  his  bankruptcy  in  his  assignee  in  bank- 
ruptcy. The  Bankrupt  Law  prohibited  the  bringing  of 
any  such  suit  in  any  court,  unless  the  suit  was  com- 
menced within  two  years.  As  a  writ  of  error  is  held 
to  be  a  new  suit,  the  failure  to  sue  out  a  writ  of  error 
within  two  years  was  held  to  be  fatal .^ 

A  third  orround  for  a  motion  to  dismiss  the  writ  of 
error  is  : 

When  by  some  matter,  whicn  appears  on  the  face 
of  the  record,  the  party  who  sues  out  the  writ  of 
error  has  waived  the  right  to  have  the  judgment  re- 
viewed by  writ  of  error.  But  the  motion  will  not  be 
maintainable  unless  the  record  show  such  waiver 
affirmatively.  Thus,  where  it  was  contended  that  the 
successful  party  to  the  judgment  had  subsequent  to 
the  judgment  availed  himself  of  the  benefit  of  the 
judgment,  and  such  fact  not  appearing  on  the  face  of 
the  record,  it  was  held  that  a  motion  to  dismiss  would 
not  lie.~ 


'  Cla3^ton  v.  Cheel)^  5  Colo.  337;  Webster  v.  Gaff,  6  Colo.  275. 
*  Atkinson  v.  Tabor,  7  Colo.  195. 


Motion  to  Dismiss.  229 

K  fourth  ground  for  a  motion  to  dismiss  a  writ  of 
error  is  when  the  judgment  is  not  in  excess  of  two 
thoiisaiid  five  hundred  dollars,  and  is  not  within  the 
exceptions  mentioned  in  the  statute.  In  such  case  if 
the  writ  of  error  issued  out  of  the  Supreme  Court,  a 
motion  to  dismiss  the  writ  will  lie  since  the  Supreme 
Court  will  not  have  jurisdiction  under  the  act  of 
1 89 1,  and  the  writ  ought  to  have- been  sued  out  of 
the  Court  of  Appeals. 

A  motion  to  dismiss  for  want  of  jurisdiction,  by 
reason  of  the  amount  involved,  will  not  usually  lie  in 
the  Court  of  Appeals,  since  that  court  does  not  seem 
to  regard  the  $100  limitation,  imposed  by  the 
Code,  before  the  institution  of  that  court,  on  the  Su- 
preme Court  as  applying  to  the  Court  of  Appeals, 
under  the  act  of  1891. 

Of  Pleas  before  Joinder  in  Error. 

Sec.  134.  There  are  also  various  pleas,  which  should 
be  interposed  before  the  defendant  joins  in  error. 
They  are  such  as  pleas  of  a  release  of  errors;  pleas  of 
a  waiver  to  have  a  review  of  the  judgment  by  a  writ  of 
error;  pleas  attacking  the  right  of  a  person  who  sues 
out  a  writ  of  error,  after  the  expiration  of  three 
years  from  the  date  of  the  judgment,  on  the  ground 
that  he  was  under  disability  by  the  statute  at  the 
time  of  the  rendering  of  the  judgment,  and  pleas  of 
a  similar  nature.  These  pleas  should  be  interposed 
at  as  early  a  period  as  possible  as  they,  if  successful, 


230  Practice  in  Courts  of  Review. 

will  prevent  the  necessity  of  joining  in  error.  Many 
such  objections,  if  not  interposed  prior  to  the  joining 
in  error,  will  be  waived  by  such  joinder,  as  a  joinder 
in  error  is  a  general  appearance. 

Of  the  Joinder  in  Error. 

Sec.  135.  If  the  defendant  have  no  preliminary 
motions  or  pleas  to  make,  which  he  regards  as  main- 
tainable, the  next  step  for  him  to  take  is  to  join  in 
error.  As  the  assignment  of  errors  fills  the  place  of 
the  complaint  in  the  trial  court  as  plaintiff's  pleading 
assertinor  the  existence  of  reversible  error  in  the 
record,  so  the  joinder  in  error  takes  the  place 
of  the  defendant's  answer,  and  is  a  general  de- 
nial of  each  and  every  assignment  of  errors.  No 
other  pleading  is  permissible,  except  a  confession  of 
all  or  some  one  or  more  of  the  errors  assigned,  to  the 
assignment  of  errors.  Defects  in  the  mode  of  as- 
signing  errors  are  reached  by  motion. 

If  not  postponed  by  reason  of  some  motion  or 
plea,  the  effect  of  which  will  prevent  the  necessity  of 
joining  in  error,  the  rules  require  that  the  defendant 
join  in  error  within  yf/"/^^;i;  days  after  the  first  day  of 
the  term  at  which  the  scire  facias  is  returnable,  un- 
less on  application  to  the  court  or  by  a  written  stipu- 
lation, or  by  stipulation  entered  into  in  open  court, 
further  time  is  given  to  join  in  error. 


Joinder  in  Error.  231 

Form  of  Joinder  in   Error. 

(  Venue  and  title  of  cause. ) 

Comes  the  defendant  in  error  above  7iamed  and  says  that  there  is  no 
error,  either  in  the  record  or  proceedings,  or  in  the  giving  of  the  judg- 
ment, as  is  by  the  plaintiff  in  error  alleged  in  said  assignment  of 
errors.  Wherefore  he  prays  that  said  judgment  be  in  all  respects 
ajffirmed,  etc. 


Defendant  in  error. 

A  joinder  in  error  being  a  full  appearance  by  the 
defendant  in  error,  he  is  thereafter  entitled  to  notice 
of  every  subsequent  proceeding  by  the  adverse  party.^ 

If  the  defendant  fail  to  join  in  error  the  cause  in 
error  is  liable  to  be  heard  ex  parte,  or  the  judgment 
or  decree  may  be  reversed  without  a  hearing,  in  the 
discretion  of  the  court,  under  Rule  14.-^ 

Of  Cross-Errors. 

Sec.  136.  Prior  to  the  act  of  1889,  it  was  not  per- 
mitted to  assign  cross-errors,  except  by  special  leave 
of  the  court,  on  application  made  therefor.  But  by 
the  act  of  1889,  "The  appellee  or  defendant  in  error 
may  assign  cross-errors  on  the  record  filed  by  the 
adverse  party,  and  such  errors  shall  be  heard,  and  the 
decision  rendered  thereon  at  the  same  time  that  the 
cause  is  considered  on  the  errors  assigned  by  appel- 
lant or  plaintiff  in  error." 

There  are  sometimes  cases  where  both  parties  are 
dissatisfied  with  the  judgment  rendered,  and  before 
■  Code,  §  379. 


232  Practice  in  Courts  of  Review. 

the  passage  of  the  above  act,  they  were  obliged  to 
either  appeal  or  take  a  writ  of  error,  necessitating 
two  appeals  or  writs  of  error.  By  the  above  provis- 
ion, both  parties  may  now  assign  errors,  and  have 
the  cause  wholly  determined  in  the  one  proceeding. 

If  an  appellee,  or  defendant  in  error,  be  not  satisfied 
with  any  ruling  or  decision  of  the  trial  court,  he  can 
only  call  such  decision  in  quesion  on  appeal  or  writ 
of  error  by  the  other  party,  by  assigning  such  decis- 
ion as  error,  provided  he  have  preserved  a  proper  ex- 
ception, where  a  bill  of  exceptions  is  required,  on  an 
assignment  of  cross-errors  by  him.  Thus,  in  criminal 
cases,  the  only  mode  by  which  the  prosecution  may 
procure  a  review  of  the  rulings  of  the  trial  court, 
which  it  believes  to  be  injurious  to  the  people,  in  a  case, 
is  by  assigning  cross-errors  when  the  convicted  de- 
fendant takes  the  judgment  to  the  court  of  review 
on  writ  of  error.  But  to  do  this  he  must  have  prop- 
erly preserved  his  exceptions  by  a  bill  of  exceptions 
in  the  case  and  ask  special  leave  to  assign  cross- 
errors,  as  the  Code  does  not  apply  to  such  cases. 

In  assigning  cross-errors  the  party  proceeds  in  the 
same  manner  as  the  plaintiff  in  error  files  his  assign- 
ment of  cross-errors,  and  the  plaintiff  in  error  joins 
in  error  thereon. 

The  joinder  in  error,  whether  on  the  original  as- 
signment, or  on  the  assignment  of  cross-errors,  forms 
the  issue  to  be  tried  by  the  court.  This  is  an  issue 
of  law  only,  and  is  tried  by  the  record  as  filed  in  the 


Supplemental  Record.  233 

court  of  review.  The  court  takes  no  notice  of  any 
matter  whatever,  outside  of  the  matters  found  in  the 
transcript,  except  such  matters  as  it  is  bound  to  ju- 
dicially notice.  Additional  averments  or  evidence 
cannot  be  supplied  or  added  to  the  record  filed. 
The  appeal  or  writ  of  error  is  determined  on  that 
record,  and  the  only  judgment  which  the  appellate 
court  can  render  is  an  affirmance,  a  modification,  or 
a  reversal  of   the  judgment  contained  in  that  record.^ 

Supplemental  Transcript  of  Record. 

Sec.  137.  In  the  proceedings  thus  far  on  error,  it 
may  be  discovered  that  portions  of  the  record,  as  it 
exists  in  the  trial  court,  which  are  necessary  to  a  full 
and  fair  investigation  and  decision  of  the  matters  as- 
signed for  error,  either  in  the  principal  assignments 
of  error,  or  the  cross-errors,  have  been  omitted 
from  the  transcript,  filed  in  the  appellate  court,  or 
have  been  incorrectly  transcribed  therein.  In  such 
case  it  will  become  necessary  for  the  party  interested, 
either  plaintiff  or  defendant  in  error,  to  procure  a 
supplemental  transcript  of  the  parts  of  the  record 
omitted  or  incorrectly  copied,  and  have  them  added 
to  and  made  a  part  of  the  record  in  the  court  of  re- 
view. The  Supreme  Court  has  provided  the  follow- 
ing (Rule  1 1)  on  this  subject: 

'Code  of  1889,  §  386;  Hall  v.   Rockwell,  8  Colo.    103;  Luthe  v. 
Luthe,  12  Colo.  430;  Tabor  v.  Clark,  15  Colo.  434. 

30 


234  Practice  in  Courts  of  Review. 

"  When  a  party  to  any  cause  in  the  appellate  court 
asks  leave,  without  suggesting  a  diminution  of  the 
record,  to  file  an  additional  or  supplemental  trans- 
cript of  the  record,  he  shall  give  twenty-four  hours' 
notice  of  such  application  to  the  adverse  party.  At 
the  time  of  filing  such  motion,  and  giving  such  no- 
tice, he  is  required  to  lod"ge  the  additional  or  supple- 
mental transcript  with  the  clerk  of  the  appellate  court 
for  inspection  by  the  adverse  party.  If,  upon  hearing 
the  motion,  leave  to  file  the  same  is  granted  by  the 
court,  the  supplemental  or  additional  transcript  may 
be  filed.  It  will  then  be  considered  in  connection 
with  the  original  transcript." 

The  above  rule  evidently  contemplates  that  the 
party  who  desires  to  procure  leave  to  file  an  addi- 
tional transcript,  first  procure  from  the  clerk  of  the 
trial  court  such  transcript.  In  ordinary  cases  it  will 
not  be  necessary  to  make  application  to  the  trial 
court  for  the  transcript.  But  if  an  amendment  or 
correction  of  the  record  of  the  cause  or  the  supplying 
of  any  omission  in  the  record  become  necessary  to 
make  the  record  speak  the  truth,  an  application  to 
the  trial  court  must  first  be  made,  on  notice  to  all 
parties  adversely  interested,  and  an  order  be  made 
by  the  trial  court  supplying  the  omission  or  correct- 
ing the  error.  A  transcript  of  such  proceedings  will 
then  be  procured  from  the  clerk  of  the  trial  court, 
duly  authenticated  by  him,  and  be  lodged  with  the 
clerk  of  the  court  of  review  out  of  which  the  writ  of 


Supplemental  Record.  235 

error  issued.  The  party  seeking  leave  to  file  it  will 
then  serve  a  written  notice  on  the  attorney  who  rep- 
resents the  adverse  party,  or  on  the  adverse  party,  if 
no  joinder  in  error  has  been  had,  or  no  attorney  has 
entered  an  appearance  for  him,  stating  that  he  has 
lodged  the  additional  or  supplemental  transcript  with 
the  clerk  for  his  inspection,  and  that  on  a  day  therein 
named  he  will  apply  to  the  court  for  leave  to  file  the 
same  as  part  of  the  record  in  the  cause.  At  least 
twenty-four  hours'  notice  is  required,  and  the  notice 
should  be  served  by  copy,  and  the  original,  with  an 
affidavit  showing  due  service  thereof,  or  an  accept- 
ance of  due  service  by  the  adverse  party  indorsed 
thereon,  should  be  filed  in  the  court.  On  the  day 
appointed  for  hearing  the  motion,  if  no  objection  to 
the  filing  is  made,  the  court  will  order  that  it  be  filed, 
and  be  considered  as  part  of  the  record.  But  this 
order  is  not  made  of  course,  unless  the  court  can  see 
that  the  matters  contained  in  the  additional  transcript 
are  necessary  or  proper  to  the  consideration  of  the 
errors  assiofned. 

A  supplemental  or  additional  transcript  is  proper 
in  cases  where  there  is  an  omission  of  some  part  of 
the  record,  when  the  omitted  portion  is  necessary  to 
enable  the  court  to  pass  understandingly  on  the 
errors  assigned,  and  render  a  correct  decision  thereon. 
It  is  also  necessary,  when  it  appears  by  the  transcript 
filed  that  orders  and  the  action  of  the  court  has  been 
incorrectly    entered    of    record,   and   it    is    desirable 


236  Practice  in  Courts  of  Review. 

to  have  the  errors  corrected  by  the  action  of  the  trial 
court. 

A  supplemental  transcript  is  also  required  when 
proceedings  in  the  action  after  the  rendition  of  the 
original  judgment  have  been  had,  which  it  is  sought 
to  have  reviewed  in  the  court  of  review  as  is  now 
permitted  by  the  act  of  1889.^ 

A  writ  of  certiorari  is  not  necessary  to  bring  up  an 
amended,  additional,  or  supplemental  transcript.  The 
party  procures  it  of  his  own  motion,  and  then  pro- 
ceeds as  is  prescribed  by  Rule  11. 

The  supplemental  or  additional  transcript  should 
be  obtained  at  as  early  a  period  in  the  proceeding  as 
possible,  after  its  necessity  is  ascertained,  but  leave 
to  file  a  supplemental  record  will  be  given  by  the 
court,  even  after  the  cause  has  been  submitted,  if  the 
filing  of  such  supplemental  record  be  essential  to  a 
proper  review  of  the  case.  In  some  cases  also  leave 
will  be  given  to  file  additional  errors,  based  on  the 
additional  record,  if  it  be  necessary  to  do  so,  to  reach 
a  proper  decision,  See  {ante')  "  Where  record  is  de- 
fective," p.  129,  and  "Of  procuring  an  amended  bill 
of  exceptions,"  section  120,  ante. 

Suggestion  of  Diminution  of  the  Record. 

Sec.  138.  Rule  11  practically  dispenses  with  any 
necessity  for  suggesting  to  the  court  a  diminution  of 

'  Wolfley  V.  Mining  Co.,  3  Colo.  296;  Knox  v.  McFerran,  4  Colo. 
348;  Ple3^te  V.  Pleyte,  14  Colo.  593. 


Diminution  of  Record.  237 

the  record,  which  is  a  more  formal  mode  of  procuring 
an  amended  transcript.  But  it  does  not  abolish  that 
mode  of  procedure,  the  two  being  concurrent  remedies 
for  curing  a  deficiency  in  the  transcript  filed  in  the 
court  of  review,  and  either  may  be  resorted  to  in 
proper  cases. 

A  suggestion  of  a  diminution  of  the  record  is  an 
assigning  of  special  deficiencies  which  are  alleged  to 
exist  in  the  transcript  of  the  record  on  file,  in  which 
the  transcript  varies  from  the  record  as  it  exists  in 
the  trial  court,^ 

As  a  general  rule  it  is  not  permitted  to  make  a 
suggestion  of  a  diminution  of  the  record  after  a 
joinder  in  error  by  the  defendant  in  error. 

But  it  is  also  a  general  rule  that  a  court  of  review, 
at  any  time  either  before  or  after  a  joinder  in  error, 
may,  in  its  discretion,  award  a  cej^tiorari  (the  object 
for  which  a  suggestion  of  a  diminution  is  made),  to 
bring  up  a  more  perfect  record,  when  it  is  advised 
that  the  transcript  before  it  is  vitally  deficient,  in 
regard  to  the  matters  on  which  error  is  assigned,  and 
that  such  deficiencies  do  not  exist  in  the  record  of 
the  trial  court. 

This  is,  however,  a  matter  wholly  discretionary,  and 
in  awarding  a  certiorari,  the  court  will  have  regard 
to  the  party  who  makes  the  suggestion,  and  award  it 
more  readily  in  the  case  of  a  defendant  in  error  than 


'Tidd's   Pr.    1824;   Martin  v.    Force,    3   Colo.    199;    Stebbins   v. 
Anthony,  5  Colo.  3+2. 


238  Practice  in  Courts  of  Review. 

in  the  case  of  a  plaintiff  in  error,  since  it  is  especially 
the  duty  of  the  latter  to  bring  up  a  correct  record, 
and  if  the  record  filed  is  deficient,  it  will  be  through 
fault  or  neglect  on  his  part.  The  court  is  guided  by 
the  same  principle,  when  it  acts  under  Rule  11,  in 
allowing  an  additional  or  supplemental  transcript  to 
be  filed,  that  is,  unless  the  additional  transcript  be 
indispensable  to  enable  the  court  to  review  the  record 
understandingly,  and  with  due  regard  to  the  substan- 
tial rights  of  all  parties,  it  will  permit  the  supple- 
mental transcript  to  be  filed  only  on  a  showing  of  no 
want  of  due  care  on  the  part  of  him  who  asks  leave 
to  file  it. 

Another  important  rule  is  that  a  suggestion  of 
diminution,  or  leave  to  file,  will  not  be  entertained, 
if  sufficient  error  appear  in  the  transcript  on  file  to 
require  a  reversal  of  the  judgment,  unless  it  be  made 
to  appear  that  in  the  omitted  portion  of  the  record 
it  affirmatively  appears  that  the  error  was  corrected 
by  the  trial  court  at  a  subsequent  period  of  the  trial, 
or  that  the  party  alleging  the  error  has  legally 
waived  such  error  by  his  subsequent  action  in  the 
cause  in  the  trial  court.  The  court  does  not  inquire 
into  the  materiality  of  the  alleged  deficiency  in  the 
record,  on  a  suggestion  of  diminution.^ 

'I  Leon.  22;  I  Salk.  269;  2  Ld.  Raymond,  1005;  2  Bac.  Abr. 
205;  Jones  V.  Caruthers,  i  Colo.  291. 


Diminution  of  Record.  239 

Form  of  Suggestion  of  Diminution. 

State  of  Colorado. 

///  tJie Court. 


B- 


vs. 
C D- 


Now  comes  A.  B.,  above  na/ned,  and  suggests  to  the  court  here, 
that  in  the  transcript  of  the  record  returned  in  the  above-entitled 

cause  from  the Court  of county,   there  are  the  following 

deficiencies  ,  viz.:  {here  set  forth  specifically  the  papers,  such  as  affida- 
vits, motions,  etc.,  which  have  been   omitted  from   the  transcript  on 

file.) 

Wherefore  the  said  A.  B.  prays  this  honorable  court  to  issue  its 
7vrit  of  certiorari  to  said  court,  commanding  the  clerk  thereof  to  cer- 
tify to  this  court  a  true  and  correct  transcript  of  the  record  and 

proceedings,  as  they  now  remain  in  said  court. 

A.  B., 

by ,  his  Attorney. 

Special  Pleas  to  Assignment  of  Errors. 

Sec.  139.  Besides  the  joinder  in  error,  which  is  a 
denial  of  all  error  in  the  record,  defendant  may  plead 
special  pleas,  such  as  a  release  of  errors,  the  statute 
of  limitations,  etc.  If  it  appear  on  the  face  of  the 
record  that  the  writ  of  error  has  been  brought  after 
the  expiration  of  the  time  within  which  the  writ  of 
error  is  required  by  law  to  be  brought,  and  there  is 
no  claim  by  the  plaintiff  in  error  that  he  is  within  any 
of  the  exceptions  of  the  statute,  a  motion  to  dismiss 
the  writ  of  error  is  the  proper  procedure  under  the 
Colorado  practice.     But  if  the  claim  is  that  the  plain- 


240  Practice  in  Courts  of  Review. 

tiff  is  within  a  saving  clause  of  the  statute,  the  proper 
procedure  is  to  plead  the  statute  of  limitations,  to 
which  the  plaintiff  can  reply  the  saving  clause  of  the 
statute,  and  have  the  question  determined  on  argu- 
ment or  trial  of  the  issue  on  the  plea.^  When  a  re- 
lease of  errors,  either  by  a  formal  release,  or  by  sub- 
sequent action,  which  is  in  law  a  release  of  errors,  is 
relied  on,  a  formal  plea  of  release  of  errors  is  re- 
quired.    This  plea  is  traversable. 

A  release  of  errors  by  one  of  several  defendants, 
when  the  error  affects  only  that  defendant,  is  good 
so  far  as  his  interest  is  involved.  But  when  the 
error  affects  all  the  defendants,  a  release  by  one  of 
the  defendants,  unless  made  for  and  on  behalf  of  all 
the  defendants,  is  no  bar  to  the  prosecution  of  the 
writ  of  error  by  the  other  defendants. 

But  where  several  plaintiffs  have  judgment  against 
the  defendants,  a  release  of  errors  by  one  of  the 
plaintiffs  is  a  good  bar  to  a  writ  of  error  to  that 
judgment  by  the  other  plaintiffs.  A  party  cannot 
release  any  error  which  does  not  affect  himself  per- 
sonally. 

The  payment  by  a  defendant  of  the  money  before 
execution  issued  on  the  judgment,  to  prevent  the  ac- 
cumulation of  costs,  interest,  etc.,  does  not  operate  as 
a  release  of  errors.  But  the  acceptance  of  the  money 
by  the  plaintiff  in  the  trial  court  is  a  release  of  any 
errors  in  the  judgment  as  against  him,  and  prevents 

'  Willoughby  v.  George,  5  Colo.  80. 


Release  of  Errors.  241 

his  maintaining  error  thereon.  The  error  still  exists, 
but  his  release  of  it  precludes  him  from  availing  him- 
self of  such  error  to  secure  its  reversal. 

A  replication  to  a  plea  of  release  of  errors,  which 
alleges  that  said  release  was  obtained  by  fraud,  must 
set  out  the  facts  which  constitute  the  fraud.^ 

Form  of  Plea  of    Release  of  Errors 

State  of  Colorado. 

In  the Court. 

To  the  Term,  18 — . 

{Parties  to  writ  of  error. ) 

Comes  the  defenda?it  ifi  error  above  named,  by ,  his  attorney, 

and  says  that  prior  to  the  commencement  of  the  proceedings  in  error, 
in  this   cause,  the  plaintiff^  in  error   above   named,    at  the  county 

of ,  and  State  of ,  on  the day  of ,  A.   D.   18 — , 

for  a  valuable  consideration  then  arid  there  to  him  paid  and  by  him 
accepted  and  received,  duly  executed  and  delivered  to  this  defendant  in 
error,  an  instniment  in  zvriting,  u?ider  his  hand  and  seal,  wherein 
atid  whereby  the  said  plaintiff  in  error,  for  the  consideration  therein 
named,  released  any  and  all  errors  in  the  record  and  proceedings  in 
this  cause  in  the  trial  courf  so  far  as  he  is  or  may  be  affected  thereby, 
which  said  instrument  in  writing  is  here  ready  to  be  produced  to  the 

court.  , 

Attorney  for  Defcjidant,  etc. 

The  Issue  Made  by  the  Joinder  in  Error. 

Sec.  140.  The  issue  made  by  the  joinder  in  error 
is  always  an  issue  of  law  for  the  court,  to  be  deter- 
mined by  the  facts  as  found  in  the  transcript  of  the 
record  brought  up  from  the  trial  court.      A  court  of 

'  Com.   Digest,  tit.   Pleader,  262;  Story  PI.  372;  Hendrickson  v. 
Vanwinkle,  21  III.  274. 

^1 


242  Practice  in  Courts  of  Review. 

review  can  take  judicial  cognizance  of  no  matter  of 
fact,  unless  such  matter  is  found  in  the  record.  The 
matters  therein  stated  import  absolute  truth,  and 
cannot  be  controverted,  or  an  issue  as  to  the  truth 
thereof  made,  in  the  appellate  court  on  evidence  out- 
side of  the  record  itself.  If  the  record  does  not 
speak  the  truth,  a  correction  thereof  must  be  sought 
in  the  trial  court.  It  cannot  be  corrected  by  the 
court  of  review. 

The  questions  presented  to  the  appellate  court  for 
its  investigfation  and  determination  are  : 

First.  Is  there  apparent  in  the  record,  filed  in  the 
court  of  review,  any  error  that  appears  to  be  material 
and  substantial  ? 

Second. '  Does  such  error  affect  a  substantial  rig-ht 
of  the  party  who  assigns  such  error? 

Third.  Does  such  error  require  the  court  to  re- 
verse or  modify  the  judgment  of  the  trial  court  ? 

The  court  of  review  can  only  affirm,  modify  or 
reverse  the  judgment  of  the  trial  court,  on  the  record, 
as  it  is  filed  in  the  appellate  court ;  and  the  latter 
has  no  authority  to  go  outside  of  that  record. 

Of    Errors,  for    which    the    Court    of    Review 
WILL  Modify  or  Reverse. 

Sec.  141.  There  are  three  classes  of  cases  rev^iew- 
able  on  error  by  a  court  of  review. 

"Dx^  first  class  is  where  the  proceedings  in  the  trial 
court  are  so  fundamentally  wrong  that  the  judgment 


Errors  that  Reverse.  243 

may  be  wholly  disregarded  and  ignored  by  the 
defendant  as  a  judgment  against  him,  even  in  collat- 
eral proceedings,  because  it  is  absolutely  void.  In 
such  cases,  notwithstanding  this  fact,  the  judgment 
may  properly  be  reviewed  on  error,  that  the  nullity 
of  the  judgment  may  be  judicially  declared. 

Thus,  where  the  trial  court  has  not  by  law  juris- 
diction of  the  subject-matter  of  the  action,  yet  if  it 
proceeds  to  a  trial  and  adjudication  thereof,  with  the 
consent  of  all  parties,  or  without  their  consent,  its 
judgment  will  be  absolutely  void  for  the  want  of 
jurisdiction  of  the  subject-matter.  But  as  a  rule  the 
judgment  of  a  court  of  general  jurisdiction  will  not 
be  held  to  be  void,  unless  it  appears  beyond  ques- 
tion, from  the  record  and  the  law  of  the  State,  that 
it  can  have,  under  no  circumstances,  jurisdiction  of 
the  subject-matter.  The  presumption,  however,  is 
in  favor  of  its  jurisdiction,  and  that  presumption  is  to 
be  overcome  by  the  record  alone. 

Thus,  if  a  judgment  be  rendered  in  a  County  Court 
for  a  sum  exceeding  two  thousand  dollars,  exclusive 
of  interest  and  costs,  in  an  original  case  in  that 
court,  or  for  a  sum  in  excess  of  three  hundred  dol- 
lars, exclusive  of  interest  and  costs,  on  an  appeal 
thereto  from  the  judgment  of  a  justice  of  the  peace, 
the  judgment  will  be  absolutely  void. 

Want  of  jurisdiction  of  the  person  of  the  defend- 
ant is  equally  as  fatal  to  the  judgment  as  is  a  want 
of  jurisdiction  of  the  subject-matter.      If  the  record 


244  Practice  in  Courts  of  Review. 

show  that  no  summons  whatever  was  served  on  the 
defendant,  in  some  one  of  the  various  modes  pre- 
scribed by  the  statutes,  and  that  no  general  appear- 
ance was  entered  by  or  for  him  in  the  trial  court,  by 
some  person  duly  authorized,  the  record  affirmatively 
shows  a  want  of  jurisdiction  of  his  person,  and  the 
judgment  is  for  that  reason  absolutely  void.  This  is 
elementary,  and  no  citation  of  authorities  is  neces- 
sary on  this  point. 

If,  however,  the  records  show  due  service  of  pro- 
cess on  the  defendant,  or  one  of  them,  if  there  be 
several,  the  record  on  error  is  conclusive  against  the 
person  served,  and  the  jurisdiction  of  the  court  can- 
not be  questioned  by  him  In  that  proceeding.  If  it 
state  that  which  is  not  the  fact,  either  because  the 
summons  was  not  served  at  all,  or  because  it  was  in 
fact  served  on  a  different  person  who  bears  the  same 
name,  the  remedy  must  be  sought  in  the  trial  court 
by  motion  or  suit  in  equity. 

Hence,  when  the  error  assigned  is  that  the  trial 
court  had  not  jurisdiction,  the  court  of  review  is  gov- 
erned by  the  presumption  of  jurisdiction,  which  at- 
taches to  every  court  of  general  jurisdiction,  and  will 
make  a  careful  examination  of  the  record  to  see  if 
that  jurisdiction  is  found  to  exist,  unless  it  is  clearly 
apparent  that  the  trial  court  could,  under  no  circum- 
stances, have  jurisdiction.  If  the  error  assigned  be 
want  of  jurisdiction  of  the  person,  the  entire  record 
will    be   carefully  searched  to    see  if,  at  any  point 


Want  of  Facts.  245 

during  the  proceedings  prior  to  final  judgment,  the 
party  assigning  error  has  done  any  act  or  thing 
which  in  law  is  held  to  be  the  equivalent  of  a  full 
general  appearance  to  the  action  in  the  trial  court. 
If  such  a  general  appearance  be  found  in  the  rec- 
ord, the  failure  to  issue  or  serve  process  will  be 
deemed  to  have  been  waived,  and  the  error  assigned, 
"  want  of  jurisdiction,"  will  be  declared  not  to  be 
tenable. 

A  second  primary  question  for  the  determination 
of  the  court  of  review  is  the  error,  when  assigned, 
that  the  complaint  "  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action  against  the  defendant." 
This  error  is  a  fundamental  one,  and  the  court  will 
take  notice  of  it,  sua  sponie,  when  it  becomes  neces- 
sary to  do  so.  But  in  considering  the  question  of 
the  sufficiency  of  the  facts,  the  court  disregards  all 
imperfections  of  statement,  gives  the  most  liberal 
possible  construction  to  the  pleading,  and  will  presume 
in  favor  of  its  sufficiency,  especially  when  the  trial 
court  has  ruled  that  it  is  sufficient.  If  the  assio;nment 
of  insufficiency  be  made  for  the  first  time  in  the  court 
of  review,  the  assignment  of  error  will  be  sustained 
only  when  the  facts,  though  well  stated  in  the  pleading, 
constitute  no  cause  of  action  against  the  defendant. 
If  by  any  possible  construction,  disregarding  all  imper- 
fections of  statement,  a  cause  of  action  against  the 
defendant   can  be  spelled   out  of  the  facts  stated  in 


246  Practice  in  Courts  of  Review. 

the  complaint,  the  court  will  decide  against  the  as- 
signment of  error.^ 

The  foregoing  two  errors  are  the  only  errors  which 
are  permitted  to  be  assigned  for  the  first  time  in  the 
appellate  court.  All  other  matters  on  which  error  is 
assigned  must  be  first  mooted  in  the  trial  court  or 
they  will  not  be  noticed  by  the  court  of  review. 

Other  errors  in  the  record  proper,  as  now  estab- 
lished by  the  amendments  to  the  Code,  are  errors  in 
allowing  a  motion  for  a  judgment  on  the  pleadings, 
or  in  disallowing  it  when  such  allowance  would  be 
proper ;  errors  in  overruling  a  motion  for  a  continu- 
ance ;  errors  in  denying  motions  for  new  trial,  in  ar- 
rest of  judgment,  and  errors  in  giving,  refusing  and 
modifying  instructions,  all  which  now  constitute  part 
of  the  record  proper,  will  be  held  to  be  reversible  error 
only,  when  the  error  assigned  is  found  to  have  sub- 
stantially prejudiced  the  party  assigning  error. 

Error  assigned  on  the  admission  or  rejection  of  evi- 
dence, oral  or  written,  will  not  be  considered  by  the 
court  of  review,  as  hereinbefore  stated,  unless  a  bill  of 
exceptions  is  brought  up  in  the  record,  and  such  bill 
explicitly  states  that  all  the  evidence,  which  was  heard 
by  the  trial  court  in  that  cause,  is  contained  therein. 
When  such  statement  is  not  found   in   the   bill,   the 


'  Herfort  v.  Cramer,  7  Colo.  483-488;  Marix  v.  Stevens,  10  Colo. 
261;   Rhodes  v.  Hutchins,  10  Colo.  258;  U.  P.  Ry.  Co.  v.  DeBusk, 

12  Colo.  294;  Calhoun  V.  Gerardine,  13  Colo.  103;  McPhee  v.  Young, 

13  Colo.  80;  Walley  V.  P.  &  D.   D.    Co.,  15    Colo.    579;    Becket   v. 
Cuenin,  15  Colo.  281  ;  Buenz  v.  Cook,  15  Colo.  38. 


Error  in  Instructions.  247 

court  will  presume  that  there  was  other  evidence 
heard  by  the  trial  court  sufficient  to  support  the 
judgment,  and  as  the  person  assigning  error  has  the 
burden  of  showing  the  existence  of  error  in  the  rec- 
ord, he  must  overcome  the  presumption  that  the 
court  was  justified,  by  the  evidence  heard  at  the  trial, 
in  rendering  the  judgment  complained  of,  by  the 
statement  in  the  bill  that  it  contains  all  the  evidence 
heard  at  the  trial. ^ 

So  in  assigning  error  as  to  the  giving,  modifying 
or  refusing  of  instructions,  the  statement  in  the  bill 
of  exceptions  that  it  contains  all  the  evidence  is  in- 
dispensable, since,  where  an  instruction  is  given, 
which  is  not  applicable  to  any  evidence  found  in  the 
bill  of  exceptions,  and  it  may  have  worked  prejudice 
to  the  party  who  assigns  error,  the  court  of  review 
will  presume  that  there  was  evidence  heard  in  the 
trial  court,  pertinent  to  the  issue,  which  will  justify 
such  instruction,  unless  the  bill  states  that  it  contains 
all  the  evidence  heard.  It  is  only  when  an  instruc- 
tion is  beyond  question  erroneous,  and  prejudicial  to 
the  plaintiff  in  error,  that  the  appellate  court  will  re- 
verse the  judgment  by  reason  of  the  giving  or  modi- 
fying of  the  instruction. 

So  an  erroneous  judgment  is  not  cause  for  a 
reversal,   when    the  trial   is   to  the  court,  unless   an 


'  Rvan  V.  Sanford,  133  111.  298;  Goodwillie  v.  Lakeview,  137  111. 
67  ;  RR.  Co.  V.  Lane.  130  111.  122  ;  Hosmer  v.  Drain  Dist.,  135  HI- 
SS- 


248  Practice  in  Courts  of  Review. 

exception  is  taken  to  the  judgment  and  duly  pre- 
served.^ 

Error  in  the  admission  of  evidence,  or  the  rejec- 
tion of  evidence,  is  reversible  error  only  when  the 
bill  of  exceptions  contains  all  the  evidence,  and  the 
evidence,  properly  admitted,  does  not  support  the 
action. 

So  error  in  matters  in  which  the  court  is  governed 
by  discretion  alone  is  not  reversible  error,  unless  the 
court  has  abused  its  discretion  to  the  injury  of  the 
plaintiff  in  error,  and  the  abuse  of  its  discretion  is 
patent  on  the  record. 

All  errors  which  do  not  affect  the  jurisdiction  of 
the  court,  or  the  sufficiency  of  the  facts  stated  in  the 
complaint  as  a  cause  of  action,  are  capable  of  being 
waived  by  the  action  of  the  party  who  assigns  error, 
had  in  the  trial  court.  This  waiver  is  held  to  take 
place  when  the  party  fails  to  take  an  objection  to 
any  objectionable  matter  on  the  trial,  or  to  take  and 
reserve  an  exception  to  any  objectionable  ruling  of  the 
court  on  motions,  or  the  admission  or  rejection  of 
evidence,  or  the  giving  of  instructions,  etc. 

A  further  important  rule  is  that  it  is  not  every 
error  which  will  be  sufficient  to  reverse  a  judgment. 
The  error  must  be  not  only  material  and  substantial, 


'  Patton  V.  C.  &  T.  B.  C.  M.  Co.,  3  Colo.  265  ;  Colo.  Spgs.  v.  Hop- 
kins, 5  Colo.  206  ;  D.  S.  P.  &  P.  RR.  Co.  V.  Reed,  6  Colo.  330  ;  Breen 
V.  Richardson,  6  Colo.  606  ;  Law  v.  Brinker,  6  Colo.  555;  London  C. 
&  M.  S.  Co.  V.  Findlay,  6  Colo.  571  ;  Wilson  v.  Gerhardt,  9  Colo. 
594;  Gibbs  V.  Wall,  10  Colo.  153;  Bk.  v.  Leppel,  9  Colo.  594. 


Reversible  Errors.  249 

but  it  must  also  be  materially  prejudicial  to  the  party 
who  assigns  it  for  error.  If  it  do  not  affect  the  party 
assigning  error,  no  matter  how  much  it  may  affect 
others,  he  cannot  maintain  error  thereon.  Thus  it 
is  not  tenable  error  for  one  defendant  that  the  error 
assigned  is  prejudicial  to  a  co-defendant.  So  error 
assigned  that  the  trial  court  refused  to  allow  a  third 
party  to  intervene  in  the  action  is  not  reversible 
error  as  to  any  party  but  the  one  who  seeks  to  inter- 
vene, for  the  action  of  the  trial  court,  if  prejudicial  at 
all,  is  prejudicial  to  him  alone,  and  not  to  the  de- 
fendant.^ 

Instances  of  Reversible  Error. 

Sec.  142.  When  incompetent  evidence  is  permitted 
to  go  to  the  jury  over  objection  properly  interposed 
thereto  in  proper  time,  which  evidence  may  have  in- 
fluenced them  in  rendering  the  verdict,  the  judgment 
will  be  reversed.^ 

Where  the  evidence  set  out  in  the  bill  of  exceptions 
does  not  support  the  verdict  of  the  jury,  or  does  not 
show  a  cause  of  action  against  defendant,  the  judg- 
ment will  be  reversed.^ 

When  an  instruction  is  given,  which  is   not  based 

'  DeLappe  v.  Sullivan,  7  Colo.  182  ;  McRobie  v.  Higgenbotham, 
II  Colo.  313  ;  Schoolfield  v.  Hoole,  13  Colo.  395;  Cross  v.  Kistler. 
14  Colo.  571;  RR.  Co.  V.  Gibson,  15  Colo.  299;  Jackson  v. 
Ackroyd.  15  Colo.  583. 

^  Ins.  Co.  V.  Smith,  3  Colo.  422;  Crane  v.  Andrews,  6  Colo.  353. 

3  Mining  Co.  v.  Findlay,  6  Colo.  571;  Cross  v.  Kistler,  14  Colo. 
572;  RR.  V.  Gibson,  15  tolo.  299;  Jackson  v.  Ackroyd,  15  Colo. 
583;  RR.  V.  Reed,  6  Colo.  330. 

32 


250  Practice  in  Courts  of  Review. 

on  evidence  preserved  in  the  bill  of  exceptions,  the 
bill  stating  that  it  contains  all  the  evidence  heard,  the 
court  of  review  cannot  assume  that  there  was  evi- 
dence admitted  on  the  trial  which  warranted  such  in- 
struction, and  if  the  effect  of  the  instruction  was 
prejudicial  to  the  party  assigning  it  for  error,  the  judg- 
ment will  be  reversed. 

So  where  a  cause  is  submitted  to  a  jury  on  two  dis- 
tinct theories,  one  of  which  is  clearly  erroneous,  and 
the  court  of  review  cannot  determine  on  which  theory 
the  jury  based  its  verdict,  the  judgment  will  be  re- 
versed. But  a  conflict  between  the  instructions  given 
will  only  be  cause  of  reversal,  when  it  clearly  ap- 
pears that  such  conflict  might  have  injuriously  affected 
the  party  complaining.^ 

So  where  the  court,  over  objection,  allowed  wit- 
nesses to  testify  as  to  their  understanding  of  what 
was  chareed  in  the  libel,  it  was  held  that  as  such  evi- 
dence  was  calculated  to  mislead  the  jury,  it  was  re- 
versible error  for  the  trial  court  to  permit  such  evi- 
dence to  be  given. ^ 

That  the  court  instructed  the  jury  orally  is  rever- 
sible error,  only  when  the  record  shows  that  the  trial 
court  instructed  the  jury  orally  against  the  objection 
of  the  party  assigning  the  giving  of  oral  instructions 
as  error.^ 


'  Mining  Co.  v.  Findla}-,  6  Colo.  571;  King  v.  Post.  12  Colo.   355; 
Nuckolls  V.  Gaut,  12  Colo.  361. 
■  Republican  Pub.  Co.  v.  Miner,  12  Colo.  IT- 
^Perkins  v.  Marrs,  15  Colo.  266. 


Errors  not  Cause  for  Reversal.  251 

Objections  not  Cause  for  Reversal,  if  Raised  in 
THE  First  Instance  in  the  Appellate  Court. 

Sec.  143.  A  variance  between  the  complaint  and 
the  proof  is  not  reversible  error,  if  the  objection  be 
made  for  the  first  time  in  the  court  of  review.^ 

The  giving-  of  an  erroneous  instruction  is  not  re- 
versible error,  if  the  instruction  be  given  at  the  in- 
stance of  the  party  who  assigns  it  as  error.^ 

The  filing  of  a  new  and  amended  complaint,  which 
introduces  a  new  cause  of  action,  is  not  reversible 
error,  when  such  objection  is  first  raised  in  the  court 
of  review. 

That  the  action  in  an  adverse  claim  suit  was  not 
brought  in  time  is  not  reversible  error,  where  the  ob- 
jection is  made  for  the  first  time  in  the  court  of 
review. 

That  an  unavailable  defense  was  permitted  to  be 
made  by  the  trial  court  is  not  reversible  error,  if  the 
objection  that  the  defense  is  unavailable  to  the  party 
is  first  made  in  the  appellate  court.^ 

Irregularity  in  the  form  of  the  verdict  must  be  cor- 
rected in  the  trial  court  and  is  no  ground  for  rever- 
sal of  the  judgment.^ 

'  Smith  V.  Roe,  7  Colo.  95;  McCoy  v.  Wilson,  8  Colo.  337;  King  v. 
DeCoursey,  8  Colo.  463;  Williams  v.  Mellor,  12  Colo.  i. 

'■^  Leitersdorfer  v.  King,  7  Colo.  437. 

^  King  V.  Rea,  13  Colo.  69;  Marshall  S.  M.  Co.  v.  Kirtle3^  12  Colo. 
417;  McCoy  V.  Wilson,  8  Colo.  337. 

*  Ry.  Co.  V.  Woodward,  4  Colo,  i  ;  Quimby  v.  Boyd,  8  Colo.  200. 


252  Practice  in  Courts  of  Review. 


CHAPTER  IX. 

Procedure  after  Filing  Transcript. 

Sec.  144.   Procedure  after  filing  transcript. 

145.  Rules  of  the  courts  of  review. 

146.  Abstracts  of  the  record. 

147.  Briefs  of  counsel  —  what  to  contain. 

148.  Briefs  —  when  and  how  many  to  be  filed 

149.  Rule  as  to  computation  of  time. 

150.  Leave  to  file  briefs  after  time. 

151.  Dismissal  for  non-compliance  with  the  rule. 

152.  Oral  argument. 

153.  Advancement  of  causes  for  decision. 

154.  Agreed  cases. 

155.  The  judgment  on  appeal  or  writ  of  error. 

156.  Opinions  on  cases  decided. 

157.  Rehearing  of  causes. 

158.  Procedure  in   trial  court  on   affirmance  or  dismissal   by- 

court  of  review. 

Procedure  after  Filing  Transcript  of  Record. 

Sec.  144.  Upon  filing  the  transcript  of  the  record 
with  the  clerk,  the  rules  of  both  courts  require  the 
deposit  of  a  docket  fee  of  $20  by  the  plaintiff  in 
error  or  appellant,  and  $5  by  the  defendant  in  error 
on  entering  his  appearance.  Rule  37  of  the  Su- 
preme Court  has  been  amended,  so  that  it  now  is  as 
follows : 

"  Upon  filing  any  suit  or  proceeding  in  this  court, 
there  shall  be  paid  to  the  clerk  by   the   party  filing 


Rules  of  Courts.  253 

the  same  the  sum  of  twenty  ($20)  dollars,  which  shall 
be  for  and  in  full  payment  of  all  clerical  costs  of  such 
party  in  the  cause,  except  for  copies  of  papers.  And 
upon  the  entry  of  appearance,  the  opposite  party 
shall  pay  to  the  clerk  the  sum  of  five  ($5)  dollars 
which  shall  be  for  and  in  full  payment  of  the  like 
costs  of  said  party  in  the  cause.  Upon  the  final  ter- 
mination of  the  cause  in  this  court,  the  successful 
party  shall  have  judgment  and  execution  against  the 
unsuccessful  party  for  the  amount  of  such  payment, 
together  with  other  costs  and  damages  awarded  by 
the  court  pursuant  to  law  or  the  rules  of  this  court." 

This  rule  abrogates  the  fee-bill  adopted  by  the 
court  prior  thereto,  as  to  cases  brought  thereto  after 
May  24,  1889. 

All  procedure  in  the  courts  of  review  after  the 
joinder  in  error  is  regulated  principally  by  the  rules 
of  the  courts,  which  are,  for  all  practical  purposes, 
identical  in  both  the  Supreme  Court  and  the  Court 
of  Appeals. 

Rules  of  the  Courts  of  Review. 

Sec.  145.  All  courts  of  record  have  the  inherent 
right  to  make  rules  regulating  matters  of  practice  and 
procedure,  in  matters  not  expressly  provided  for  by 
law,  provided  they  be  not  inconsistent  or  in  conflict 
with  express  provisions  of  law. 

This  right  is  recognized  by  the  Code.  Section  407 
enacts  that  the  Supreme  Court  and  all   other  courts 


254  Practice  in  Courts  of  Review. 

of  record  shall  respectively  have  power  to  make  rules 
and  regulations  for  governing  their  practice  and  pro- 
cedure in  reference  to  all  matters  not  expressly 
provided  for  by  law.  And  section  394  enacts  that 
"  The  Supreme  Court  may  make  all  rules  and  regu- 
lations in  regard  to  the  manner  of  preparing  abstracts 
so  as  to  have  the  same  uniform,  and  also  all  other 
matters  of  practice  and  procedure  before  it,  when  the 
same  are  not  inconsistent  with  the  provisions  of  this 
act."     (The  Code.) 

Section  6  of  the  Court  of  Appeals  Act  provides 
that  "  the  Court  of  Appeals  shall  have  power  to  adopt 
rules  regulating  the  procedure  therein,  in  the  same 
manner  and  with  like  effect  as  the  Supreme  Court, 
provided,  that  such  procedure  shall  be  so  far  similar  to 
that  of  the  Supreme  Court  as,  in  the  judgment  of  the 
judges  of  said  Court  of  Appeals  may  be  practicable. 

Rules  of  court,  so  made  and  duly  promulgated, 
have  the  force  and  authority  of  laws,  being  made  in 
pursuance  of  law,  and  by  an  authority  which  has  law- 
ful authority  to  make  such  rules.  But  it  is  held  that 
such  rules  cannot  remain  unwritten,  but  must  be  made 
a  matter  of  record  and  spread  upon  the  records  of 
the  court  before  they  become  operative  or  of  any 
force  as  rules.^ 

It  is  said  by  the  Supreme  Court  of  Illinois,  in  Lan- 
caster V.  Ry.  Co.,  that  the  rules  adopted  by  the  court 

'Crump  V.  People,  2  Colo.  319;  Trinidad  v.  Simpson,  5  Colo.  65; 
Cates  V.  Mack,  6  Colo.  401  ;  Seymour  v.  Philips,  7  Biss.  (U.  S.)  460. 


Rules  of  Courts.  255 

"  have  the  force  of  law  and  are  obHgatory  on  the 
court  itself,  as  well  as  on  the  parties  before  it.  While 
the  court  may  at  any  time  modify  or  rescind  its  rules, 
yet  until  it  does  so,  it  should  administer  them  accord- 
ing to  their  terms,  and  it  can  have  no  discretion  to 
apply  them  or  not,  according  to  its  convenience,  un- 
less such  discretion  is  reserved  in  the  rules  them- 
selves. Thus  —  An  order  allowing  an  extension  of 
time  to  file  briefs,  etc.,  is  not  a  rescission  of  the  rule 
requiring  briefs  to  be  filed  within  the  time  specified 
therein,  but  a  mere  modification  of  the  rule  in  its  ap- 
plication to  a  particular  case.  It  merely  postpones 
the  power  and  duty  of  the  court  to  enforce  the  rule  to 
the  expiration  of  the  time  of  the  extension  granted. 
At  the  expiration  of  that  time,  if  the  rule  be  not 
complied  with,  it  is  the  court's  duty  to  enforce  the 
rule  violated."^ 

In  pursuance  of  the  statute  above  cited,  the  Court 
of  Appeals  have  adopted  all  the  rules  of  the  Supreme 
Court  which  are  applicable  to  the  procedure  in  that 
court.  In  matters  relating  to  appeals  and  writs  of 
error,  the  procedure  is  substantially  uniform  in  both 
courts. 

Of  Abstracts  of  the  Record. 

Sec.  145.  In  pursuance  of  the  provisions  of  section 
394  of  the  Code,  the  Supreme  Court  and  Court  of 
Appeals    both    require,    in    causes    taken    to    those 

'Owens   V.    Ranstead,  22    111.    161:  RR.   Co.  v.  Haskins,   115  111. 
300;  Lancaster  v.  Ry.  Co.,  132  111.  493. 


256  Practice  in  Courts  of  Review. 

courts  either  by  appeal  or  writ  of  error,  an  abstract 
of  the  transcript  of  the  record,  which  is  filed  on  such 
appeal  or  writ  of  error.  This  is  the  next  step  in 
procedure  after  the  pleas,  if  any,  are  disposed  of, 
preliminary  motions  heard  and  decided,  and  joinder 
had  in  error. 

Rule  16  requires  this  abstract  to  be  printed  on 
octavo  pages  in  pamphlet  form,  and  prescribes  that 
it  must  set  forth.  First,  the  title  of  the  cause; 
Second,  the  date  of  filing  all  papers  in  the  trial 
court ;  Third,  a  brief  statement  of  the  contents  of 
each  pleading;  Fourth,  shall  set  forth  fully  the 
points  of  the  pleadings  or  evidence,  and  the  points 
relied  on  for  the  reversal  of  the  judgment  or  decree. 
It  shall,  on  the  margin  of  the  abstract,  refer  to  the 
folio  numbers  in  the  transcript  and  bill  of  exceptions 
in  such  manner  that  orders,  pleadings  and  evidence 
referred  to  in  the  abstract  may  be  easily  found  in 
the  record. 

By  rule  30,  each  party  is  authorized  to  withdraw 
the  transcript  from  the  custody  of  the  clerk,  without 
making  an  application  to  the  court  for  leave  to  do  so, 
and  retain  it  in  his  custody  for  a  period  of  eight 
days,  for  the  purpose  of  preparing  the  abstract,  re- 
quired by  Rule  16.  But  neither  party  can  do  so 
more  than  once  without  special  leave  of  the  court. 

Eight  printed  copies  of  the  abstract,  prepared  by 
the  plaintiff  in  error  or  appellant,  must  be  filed  by 
him.  in  the  clerk's  office,  within  twenty  days  after  the 


Abstracts  of  the  Record.  257 

return  day  of  the  scire  facias  in  proceedings  in  error, 
under  Rule  2,  or  in  cases  of  an  appeal,  within  twenty 
days  after  the  day  on  which  appellant  is  required  to 
file  the  record,  as  prescribed  by  section  389  of  the 
Code. 

If  the  defendant's  counsel  is  not  satisfied  with  the 
abstract  of  the  record  filed  by  plaintiff's  counsel,  he 
may,  within  twenty  days  after  the  plaintiff's  abstract 
has  been  filed,  file  with  the  clerk  eight  copies  of  such 
further  abstract  of  the  record,  as  he  shall  deem 
necessary  to  a  full  understanding  of  the  merits  of  the 
cause,  under  R.ule  i  7. 

Rule  18  prescribes  that: 

"In  case  the  appellant  or  plaintiff  in  error  shall 
neglect  or  fail  to  file  an  abstract  in  compliance  with 
the  rules  of  the  court,  the  adverse  party  may  pre- 
pare the  abstract,  and  have  the  cause  heard  ex  parte^ 
or  the  court  may  dismiss  the  appeal  or  writ  of  error." 

Rule  19  prescribes  that: 

"  If  the  abstract  do  not  present  the  parts  of  the 
record  to  which  reference  is  made  in  the  assignment 
of  errors,  the  appeal  or  writ  of  error  may  be 
dismissed." 

It  is  customary  for  the  party  who  assigns  error  to 
print  a  copy  of  the  assignment  of  errors  at  the  end 
of  the  printed  abstract. 

In  preparing  the  abstract,  care  should  be  taken  to 
set  out  fully  in  the  abstract  the  portions  of  the 
record  on  which  error  is  assigned.  Thus,  where  the 
33 


258  Practice  in  Courts  of  Review. 

error  assigned  is  the  insufficiency  of  the  complaint  to 
state  a  cause  of  action,  the  entire  complaint  should 
be  set  out  in  full  in  the  abstract.  If  only  one  cause 
of  action  stated  in  the  complaint,  where  there  are 
more  than  one  cause  of  action  stated  therein,  is 
assigned  as  insufftcient,  that  cause  of  action  alone 
should  be  set  out  fully.  So  where  an  instruction  is 
alleged  to  be  inapplicable  or  erroneous,  the  instruc- 
tion, and  so  much  of  the  evidence  incorporated  in 
the  bill  of  exceptions,  upon  which  the  instruction  is 
based,  as  will  show  the  error  in  the  instruction, 
should  be  fully  set  out  in  the  abstract.  This  rule 
should  be  carefully  followed,  as  thereby  the  judges 
are  saved  much  unnecessary  labor  in  searching 
through  the  record,  and  the  hearing  of  the  cause  is 
greatly  facilitated. 

The  rule  of  court,  which  requires  the  plaintiff  in 
error,  or  appellant,  to  prepare  an  "abstract"  of  the 
record,  is  intended  to  require  a  presentation  in  such 
abstract,  at  least  in  substance,  of  those  parts  of  the 
record  on  which  error  is  assigned  by  the  assignment 
of  errors.  The  court  will  not  search  the  record  for 
papers  which  may  be  therein,  but  are  not  mentioned 
in  the  abstract,  nor  for  exceptions  to  the  rulings  of 
the  court,  or  for  any  other  matter  assigned  for 
error,  unless  the  substance  thereof  is  mentioned  in 
the  abstract.  A  mere  index  to  the  contents  of  the 
record  is  not  considered  by  the  court  as  an  abstract, 
and  it  is  the  rule,  when  the    abstract    furnished   is 


Briefs  of  Counsel.  259 

merely  an  index  to  the  contents  of  the  record,  to 
affirm  the  judgment  of  the  trial  court,  under  Rule  19 
of  Supreme  Court. 

Hence  it  is  the  duty  of  the  plaintiff  in  error  or  ap- 
pellant to  abstract  all  pleadings  or  other  matters  on 
which  he  desires  to  raise  any  question  in  the  court 
of  review.  If  he  fail  to  abstract  it,  the  court  will 
not  examine  into  the  merits  of  the  error  assigned 
thereon.^ 

Briefs  of  Counsel — What  to  Contain. 

Sec.  147.  The  brief  of  counsel  for  appellant  or 
plaintiff  in  error  shall  contain  a  statement  of  the 
errors  relied  on  and  the  authorities  to  be  used  in  the 
argument  of  the  case.  The  statement  of  the  errors 
is  usually  a  repetition  of  the  language  of  the  assign- 
ment of  error,  each  error  assigned  being  followed  by 
a  citation  of  the  various  decisions  of  the  Supreme 
Court  and  Court  of  Appeals  of  the  State  of  Colorado, 
and  the  decisions  of  other  Supreme  Courts  of  the  va- 
rious States  and  legal  writers  of  authority,  which  coun- 
sel suppose  will  bear  out  their  views,  and  support  the 
assignment  of  error  or  the  correctness  of  the  ruling 
objected  to,  as  the  case  may  be.  Rule  25  requires 
that:  "  In  citing  cases  from  published  reports,  the 
names  of  the  parties,  as  they  appear   in  the  title  of 

'  Truby  v.  Case,  41  111.  App.  154;  Creighton  v.  Garcia,  41  111. 
App.  430;  Florez  v.  Brown,  37  111.  App.  270;  Parry  v.  Arnold,  33 
111.  App.  623;  Magner  v.  Trumbull,  33  111.  App.  646;  Allison  v. 
Allison,  34  111.  App.  386. 


26o  Practice  in  Courts  of  Review. 

the  cases,  as  well  as  the  book  and  the  page  thereof, 
shall  be  oriven."  It  will  not  be  sufficient  to  cite  an 
authority  thus:  "  6  Colo.  R.  157."  The  court  will  not 
tolerate  a  citation  so  made.  If  all  the  citations  in 
the  brief  are  made  in  such  a  manner,  the  court  will 
probably  strike  the  brief  from  the  files  as  not  in  com- 
pliance with  the  rules. 

When  the  decisions  of  the  State  courts  are 
squarely  in  point,  it  is  unnecessary  to  cite  the  decis- 
ions of  courts  of  other  States  upon  the  same  question, 
as  it  must  be  presumed  that  the  State  courts  of  re- 
view considered  the  opinions  of  the  other  courts,  if 
made  prior  to  their  decision,  in  considering  the  case 
before  them. 

In  preparing  briefs,  counsel  should  carefully  ex- 
amine the  State  reports  for  decisions  upon  the 
mooted  points,  the  Supreme  Court  having,  in  more 
than  one  instance,  complained  that  its  own  decisions 
are  neglected  in  many  cases,  where  decisions  appli- 
cable to  the  points  discussed  might  have  been  found, 
while  the  decisions  of  the  courts  of  other  States  are 
copiously  cited. 

Briefs — When  and  How  Many  to  be  Filed. 

Sec.  148.  Eight  copies  of  appellant's  or  plaintiffs 
brief  must  be  filed  with  the  clerk  of  the  court  within 
forty  days  after  the  day  fixed  by  rule  for  the  filing  of 
the  abstract.  The  day  fixed  by  rule  for  filing  ab- 
stract is  given  hereinbefore,  unless  in  special  cases 


Time  for  Filing  Abstracts.  261 

further  time  be  given  by  the  court  or  by  stipulation 
approved  by  the  court. 

The  briefs  must  be  printed  like  the  abstract  in 
octavo  form.  Two  copies  of  each  brief  may  be  with- 
drawn by  counsel  for  appellee  or  defendant  in  error, 
and  the  other  six  copies  shall  be  for  the  use  of  the 
justices  of  the  court. 

Rule  21  prescribes  that:  "  If  the  brief  of  appellant 
or  plaintiff  in  error  shall  be  filed  in  compliance  with 
Rule  20,  foregoing,  the  appellee  or  defendant  in 
error  (if  the  latter  shall  have  joined  in  error  pursu- 
ant to  rule),  shall  file  with  the  clerk  eight  copies  of 
his  brief  within  forty  days  after  the  expiration  of  the 
time  mentioned  in  Rule  20  for  the  filing  of  the  brief 
of  the  appellant  or  plaintiff  in  error.  If  the  appellee 
or  defendant  have  not  joined  in  error,  no  other 
brief  is  filed  except  that  of  appellant  or  plaintiff  in 
error. 

If  the  defendant  or  appellee  file  a  brief,  the  appel- 
lant or  plaintiff  in  error  has  twenty  days  in  which  to 
file  a  reply  brief,  eight  copies  to  be  deposited  with 
the  clerk  as  in  the  other  cases. 

The  Folloiuiiig  Schedide  will  be  of  Service. 
Abstracts  must  be  filed  within  twenty  (20)  days 
after  the  return  day  of  the  scire  facias  on  error,  or 
in  cases  of  appeal  within  twenty  (20)  days  after 
the  day  on  which  appellant  is  required  to  file  his 
transcript. 


262  Practice  in  Courts  of  Review. 

Brief  of  appellant  or  plaintiff  in  error  forty  (40) 
days  after  the  day  appointed  by  the  rule  for  filing 
abstract. 

Brief  of  appellee  or  defendant  in  error  forty  (40) 
days  after  the  expiration  of  the  time  prescribed  by 
rule  for  filing  of  plaintiff's  brief. 

Reply  brief  to  defendant's  brief  twenty  (20)  days 
after  expiration  of  the  time  prescribed  by  rule  for 
filing  defendant's  brief.  With  the  latter  brief  the 
filing  of  briefs  ends,  unless  further  briefs  are  re- 
quested by  the  court,  or  leave  of  the  court  obtained 
for  the  filing  thereof. 

Rule  22  provides  that  "by  consent  of  parties  or 
for  o-ood  cause  shown,  the  court,  or  a  justice  thereof 
in  vacation,  may  extend  the  time  for  the  filing  of  ab- 
stracts and  briefs."  It  seems  that  where  a  stipula- 
tion is  entered  into  by  the  parties  for  an  extension 
of  time,  such  stipulation  will  have  no  effect,  unless  an 
order  extending  the  time  for  filing  abstracts,  etc.,  is 
made  and  entered  of  record  by  the  court,  or  by  one  of 
the  justices,  if  made  in  vacation.  The  consent  of  par- 
ties to  an  extension  of  time  is  most  frequently  given 
in  open  court,  when  the  attorneys  are  both  present. 
If  the  consent  be  given  out  of  court  it  ought  to  be  re- 
duced to  writing,  be  signed  by  both  parties,  and  filed 
in  court.  Then  at  an  open  sitting  of  the  court  the 
attention  of  the  court  should  be  called  thereto,  and 
the  consent  of  the  parties  ratified  by  an  order  of  the 
court. 


Computation  of  Time.  263 

By  Rule  24  the  time  for  filing  abstracts  and  briefs 
is  not  extended  or  postponed  by  the  filing  of  any 
motion  in  the  cause,  after  the  joinder  in  error.  A 
postponement,  required  by  reason  of  the  filing  of  a 
motion  in  the  cause,  until  the  motion  is  heard  and  dis- 
posed of,  must  be  made  on  the  order  of  the  court,  or 
of  one  of  the  justices. 

It  is  further  provided  by  Rule  26,  that  counsel  who 
have  not  complied  with  the  rules  as  to  the  filing  of 
briefs  will  not  be  heard. 

Rule  as  to  Computation  of  Time. 

Sec.  149.  In  the  computation  of  the  time  for  filing 
abstract  and  briefs  the  rule  is  that  prescribed  by  sec- 
tion 382  of  the  Code,  i.  e.,  the  exclusion  of  the  first 
day  and  the  inclusion  of  the  last.  The  question  of 
the  construction  of  this  rule  is  directly  passed  upon 
in  the  case  of  Evans  v.  Bowers,  13  Colo.  511,  and 
the  exclusion  of  the  first  day  mentioned  and  the  in- 
clusion of  the  last  day  in  the  computation  of  the 
number  of  days  given,  held  to  be  the  correct  rule. 

In  Illinois,  however,  the  question  was  raised,  in 
case  of  a  failure  to  file  a  transcript  in  the  Supreme 
Court  within  the  number  of  days  prescribed  by  the 
law  of  that  State,  whether  the  Sunday,  the  last  day 
of  the  number  of  days  prescribed,  was  to  be  counted 
as  a  day  of  the  term,  or  to  be  excluded  from  the  com- 
putation of  the  time,  so  that  the  transcript  might  be 
filed  on  the  next  succeeding  day. 


264  Practice  in  Courts  of  Review. 

The  court  says  : 

*'  A  term  of  court  is  the  period  of  time  fixed  by  law 
for  the  hearing  of  causes,  and  the  transaction  of  ju- 
dicial business  therein.  The  term  as  fixed  by  statute 
is  to  commence  on  a  particular  day,  and  after  its  com- 
mencement it  continues,  whether  the  court  sits  during 
the  days  composing  it  or  not.  A  day  may,  therefore, 
be  one  of  the  days  of  the  term,  notwithstanding  the 
court  may  not  sit  on  that  particular  day;  and  it  can 
make  no  difference  whether  the  failure  of  the  court  to 
sit  on  that  day  results  from  an  adjournment  by  the 
court  from  one  day  to  another  day  in  the  same  term, 
or  because  the  intervening  day  is  dies  non.  In  the 
computation  of  time  all  adjournments  are  to  be 
included.      Leib  v.  Com.,  9  Watts,  200. 

"  For  most  purposes  a  term  of  court  is  considered  as 
one  day;  but  for  the  purposes  of  this  section  of  the 
Practice  Act  the  term  is  made  to  consist  of  'days' 
and  the  word  '  day '  is  used  in  its  popular  sense. 
The  fact  that  Sunday  is  not  a  judicial  day  does  not, 
within  the  contemplation  of  this  statute,  render  it  any 
less  a  day  of  the  term."     Brown  v.  Leet,  136  111.  205. 

The  court,  therefore,  dismissed  the  appeal  for  the 
failure  to  file  the  transcript  within  the  time  prescribed 
by  the  statute.  The  objection  there  made  would,  how- 
ever, not  be  good  in  Colorado,  since  the  Code  pro- 
vides that,  when  the  last  day  falls  upon  a  Sunday  or 
legal  holiday,  they  shall  be  excluded,  and  the  act  may 
be  done  on  the  next  judicial  day.     Code,  §  382. 


Briefs.  265 

Leave  to  File  Briefs  after  Time. 

Sec.  150.  Where  a  party  has  failed  to  file  his  briefs 
within  the  time  prescribed  by  the  rules  for  so  doing, 
but  prepares  them  and  tenders  them  to  the  clerk  for 
filing,  if  he  desire  leave  to  file  them  he  must  give 
notice  to  the  adverse  party  of  his  intention  to  apply 
to  the  court  for  leave  to  file  them  and  on  such  no- 
tice make  a,  motion  at  an  open  sitting  of  the  court 
for  such  leave.^ 

The  court  will  usually  grant  such  leave,  if  satisfied 
that  it  is  in  the  interest  of  justice  so  to  do.  But 
where  briefs  are  tendered  for  filing  and  no  application 
is  made  to  the  court  for  leave  to  file  them,  the  case 
will  be  dismissed  for  want  of  prosecution,  if  the  de- 
fault be  that  of  the  plaintiff  in  error  or  appellant,  or 
be  heard  ex  parte^  if  the  default  be  that  of  the  defend- 
ant or  appellee. 

Upon  the  expiration  of  the  time  prescribed  by  the 
rules  for  the  filing  of  the  briefs  by  the  respective 
parties  the  cause  is  at  issue  for  decision,  in  the  order 
in  which  it  may  be  taken  by  the  court,  and  it  is  then 
placed  on  the  submission  docket. 

Dismissal  for  Non-Compliance  with  Rule. 

Sec.  151.  The  appeal  or  writ  of  error  is  liable  to 
be   dismissed   by   the   court,   without   notice   to   the 

'  RR.  V.  Woy,  7  Colo.  556;  Owen  v.  Going,   13  Colo.   290;    RR. 
Co.  V.  Wilford,  13  Colo.  551. 

34 


266  Practice  in  Courts  of  Review. 

parties,  for  want  of  prosecution,  if,  when  placed  on 
the  submission  docket,  no  briefs  have  been  filed  by 
the  plaintiff  in  error  or  appellant,  under  Rule  23. 

Oral  Argument. 

Sec.  152.  Under  the  act  of  1889  oral  arguments 
by  counsel  for  either  party  must  be  heard  by  the 
appellate  court,  if  such  party  request  it.  The  statute 
is  but  a  repetition  of  the  standing  rule  of  the  Su- 
preme Court,  which  has  been  in  force  for  a  great 
many  years,  and  which  has  always  permitted  the  oral 
argument  of  a  cause,  in  addition  to  the  printed  briefs 
and  arguments  filed,  when  proper  application  is  made 
therefor.  No  instance  of  a  refusal  to  hear  oral 
argument  is  known,  it  is  said,  in  Devotie  v.  McGeer, 
14  Colo.  592.  The  rule  has  always  been  regarded 
as  obligatory  by  the  court. 

The  rule  (27)  is  as  follows 

"  Any  cause  upon  the  submission  docket  may  be 
moved  by  either  party  for  oral  argument.  Such 
motion  shall  be  delivered  to  the  clerk  and  filed  with 
the  papers  in  the  cause.  Prior  to  reaching  such 
cause  for  decision,  the  court  will  fix  a  day  for  the 
argument,  due  notice  of  which  will  be  given  to  the 
parties  by  the  clerk." 

The  motion  must  be  in  writing  and  due  notice  of 
the  same  be  given  to  the  adverse  party  as  in  other 
cases  of  motions.  It  is  the  usual  practice  for  the 
party  who  moves  for  an  oral  argument,  to  call  up  the 


Oral  Argument.  267 

motion  therefor  at  an  open  session  of  the  court,  and 
have  the  time  then  fixed  for  the  oral  arofument. 
By  so  doing  the  convenience,  both  of  the  court  and 
of  the  parties,  can  be  best  consulted.  By  Rule  40  of 
the  Court  of  Appeals  "application  for  an  oral  argu- 
ment is  to  be  made  on  the  second  Monday  of  each 
month,  in  person  or  by  attorney,  when  the  case  will 
be  set  down  for  oral  argument,  as  the  business  of  the 
court  will  permit.  Stipulations  for  oral  argument 
may  be  entered  into  between  the  parties,  save  as  to 
the  time  when  the  oral  argument  will  be  heard  by 
the  court,  which  time  will  be  fixed  by  the  court,  of 
which  attorneys  must  take  notice."  If  application 
for  oral  argument  be  not  made  on  the  second  Mon- 
day of  each  month,  the  right  thereto  will  be  con- 
sidered as  waived. 

At  the  oral  argument  the  judges  frequently  sug- 
gest matters  to  the  counsel  for  their  discussion,  which 
are  not  discussed  in  the  printed  briefs,  and  ask  their 
views  upon  points  pertinent  to  the  issues  before  the 
court,  by  which  the  court  may  arrive  at  a  more 
satisfactory  determination  of  the  points  involved 
in  the  issues.  Counsel,  therefore,  on  preparing  to 
argue  a  case  orally,  should  prepare  themselves  to 
answer  points  which  may  be  suggested  by  the 
judges  as  bearing  on  the  matters  involved,  since  a 
satisfactory  answer  to  such  suggestions  may  prove 
of  vital  import  in  the  decision  of  the  cause  under 
discussion. 


268  Practice  in  Courts  of  Review. 

The  party  holding  the  affirmative  begins  and  con- 
cludes the  oral  discussion.  The  court  will  usually 
limit  the  time  to  be  occupied  by  each  counsel. 

Advancement  of  Causes  for  Decision. 

Sec.  153.  In  many  cases,  which  are  of  great  im- 
portance, or  ptiblici  peris,  it  is  the  practice  of  the 
courts  to  advance  the  same  on  the  submission  docket 
for  an  earlier  hearing  and  decision  than  it  would  re- 
ceive, if  taken  in  the  order  in  which  it  stands  on  the 
submission  docket.  But  to  secure  such  an  advance- 
ment of  the  cause,  the  court  requires  a  showing  of  an 
importance  to  the  public  interests,  as  distinguished 
from  the  interests  of  the  parties  litigant,  that  a 
speedy  decision  of  the  material  question  or  questions 
involved  be  arrived  at  and  announced.  Private  in- 
terests, no  matter  how  urgent,  except  in  criminal 
causes  involving  the  death  penalty,  meet  with  little 
favor  when  an  application  is  made  to  advance  the 
cause.  There  is,  however,  a  class  of  causes,  which, 
by  Rule  51  of  the  Supreme  Court,  adopted  by  the 
Supreme  Court  in  September,  1890,  may  be  advanced 
without  any  showing.     The  rule  is  : 

"In  case  an  executor,  administrator  or  conservator 
of  the  peace  is  a  party  to  an  action  in  this  court  in 
that  capacity,  after  it  is  put  at  issue  and  submitted 
in  accordance  with  the  rules  of  this  court,  the  person 
or  party  so  prosecuting  or  defending  in  such  repre- 
sentative capacity   may  have  the  cause  advanced  to 


Agreed  Cases.  269 

the   head  of   the   submission  docket,   upon   motion, 
without  further  showing  in  support  thereof." 

To  procure  an  advancement  of  such  cause,  it  is 
requisite  that  the  record  show  that  the  cause  is  one 
of  those  mentioned  in  the  rule,  and  the  party  desir- 
ing such  advancement  must  ask  it  by  a  motion,  ac- 
cording to  the  rules  of  the  court.  The  above  rule  is 
also  Rule  39  of  the  Court  of  Appeals. 

Agreed  Cases. 

Sec.  154.  An  agreed  case  is  a  cause  wherein  the 
parties  to  the  cause  mutually  agree  upon  the  facts  of 
the  case,  and  reduce  the  same  to  writing,  and  ask  the 
court  to  decide  the  questions  of  law  only,  which 
properly  arise  upon  that  statement  of  the  facts.  To 
secure  consideration  of  an  agreed  case,  the  questions 
submitted  must  not  be  merely  speculative,  or  sub- 
mitted merely  to  obtain  judicial  opinions  on  points 
of  law,  which  the  parties  desire  to  know  for  their  own 
interests  or  purposes.  There  must  exist  a  real  and 
subsisting  controversy  between  those  who  appear  in 
the  cause  as  adverse  parties  to  the  suit,  and  it  must 
not  affect  the  rights  or  interests  of  third  parties  who 
are  not  parties  to  the  submission.  When  an  agreed 
case  is  submitted  with  a  view  of  affecting  the  rights 
of  third  parties  not  parties  thereto,  it  becomes  col- 
lusive. Hence,  the  Supreme  Court  has  adopted  the 
following  rule  in  relation  to  agreed  cases  : 


2/0  Practice  in  Courts  of  Review. 

"  No  judgment  will  be  pronounced  on  any  agreed 
case  unless  an  affidavit  of  some  credible  person  shall 
be  filed,  setting  forth  that  the  matters  presented  by 
the  record  are  litigated  in  good  faith  by  the  parties, 
about  a  matter  in  actual  controversy,  and  that  the 
opinion  of  this  court  is  not  sought  with  any  other 
design  than  to  adjudicate  and  settle  the  law  relative 
to  the  matters  in  controversy  between  the  parties  to 
the  record." 

The  affidavit  required  should  be  made  by  one  of 
the  parties  to  the  agreed  case,  if  it  can  conveniently 
be  done,  or  at  least  by  an  attorney  of  the  court  con- 
versant with  all  the  facts,  and  should  be  filed  at  the 
time  of  filinor  the  ao^reed  case.  The  affidavit  should 
be  such  as  to  remove  all  suspicion  of  collusion  or 
sinister  motive  in  submitting  the  case  for  decision. 
Though  nothing  is  said  in  the  rule  as  to  the  filing  of 
briefs  in  such  cases,  the  case  will  be  governed  by  the 
rule  as  to  briefs  in  other  cases,  as  the  agreed  case  is 
intended  to  merely  remove  from  the  field  all  con- 
troversy over  the  facts,  and  seek  a  determination  of 
the  law  as  applicable  to  those  facts.  The  statement 
of  the  facts  will  be  presumed  by  the  court  to  contain 
all  facts  necessary  to  a  proper  determination  of  the 
questions  of  law  involved,  and  on  that  statement  the 
court  will  not  only  determine  the  law  of  the  case,  but 
will  also  render  the  appropriate  judgment,  and  enforce 
the  same.^ 

'  Rule  31  of  Supreme  Court ;  People  v.  Boughton,  5  Colo.  487. 


Judgment.  271 

It  is  the  practice  of  the  Supreme  Court  not  to  en- 
tertain any  agreed  case,  unless  the  questions  involved 
be  questions  in  which  the  public,  as  distinguished 
from  the  parties  litigant,  is  primarily  interested,  if  the 
matter  can  properly  be  submitted  in  the  first  instance 
to  a  trial  court,  and  thence  be  brought  up  by  appeal 
or  writ  of  error.  It  will  also,  seldom,  if  ever,  enter- 
tain an  agreed  case  in  matters  not  within  its  original 
jurisdiction. 

The  rule  above  mentioned  has  also  been  adopted 
by  the  Court  of  Appeals,  but  as  this  court  has  by  the 
statute  no  original  jurisdiction,  it  seems  that  it  has  no 
power  by  law  to  take  cognizance  of  an  agreed  case, 
except  by  way  of  an  appeal  from,  or  a  writ  of  error 
to,  a  trial  court  on  a  final  judgment  rendered  therein. 

The  Judgment  on  Appeal  or  Writ  of  Error. 

Sec.  155.   The  Code  provides  that: 

"In  all  cases  of  appeals  or  writs  of  error,  the  Su- 
preme Court  may  give  final  judgment  and  issue  exe- 
cution, or  remand  the  cause  to  the  lower  court  in 
order  that  execution  may  be  there  issued,  or  that 
other  proceedings  may  be  had  thereon."     And  also 

"  The  Supreme  Court,  in  case  of  a  partial  reversal, 
shall  give  such  judgment  or  decree  as  the  inferior 
court  oug-ht  to  have  ofiven,  or  remand  the  cause  to 
the  inferior  court  ^or  further  procedings,  as  the  case 
may  require."^ 


'Code,  §§  390-398. 


2/2  Practice  in  Courts  of  Review. 

The  ordinary  course  of  practice  in  the  courts  of 
review  is  either  to  affirm  the  judgment  of  the  trial 
court,  or  to  modify  the  judgment,  or  to  reverse  the 
decision  of  that  court.  Though  the  statute  gives  it 
power,  in  case  of  modification  or  reversal  of  the  judg- 
ment, to  enter  the  proper  judgment  in  the  court  of 
review,  the  almost  uniform  practice  is  to  remand  the 
cause  to  the  trial  court  for  the  entry  of  the  proper 
judgment  in  case  of  modification,  and  for  further  pro- 
ceedings in  case  of  reversal.  This  is  also  more  ad- 
vantageous to  litigants,  especially  those  residing  in 
distant  counties,  as  they  can  more  easily  procure  pro- 
cess to  enforce  the  judgment  at  their  own  county 
seat,  without  being  obliged  to  resort  to  the  capital 
of  the  State  to  obtain  the  proper  process.  The  in- 
stances are  infrequent,  though  occasional,  wherein 
the  court  of  review  orders  the  final  judgment  to 
be  entered  on  its  records,  as  permitted  by  the 
statute. 

Opinions  on  Cases  Decided. 

Sec.  156.  In  each  cause  decided  by  the  court  of 
review,  the  law  requires,  and  the  practice  of  the  courts 
is,  to  write  an  opinion,  stating  the  points  determined 
by  the  court  in  that  particular  case.  The  opinion  is 
usually  written  by  one  of  the  judges,  assigned  by  the 
court  for  that  purpose,  but  it  is  the  opinion  of  all  the 
judges,  concurred  in  by  all,  unless  otherwise  stated  in 
the  opinion,  or  unless  one  of  the  judges  writes  a  dis- 


Rehearings.  273 

senting  opinion.  The  opinion  constitutes  the  law  of 
that  case.  There  are  also  opinions  frequently  filed 
which  are  termed  '' Pei'-  Ciiriam''  opinions,  that 
generally  determine  some  matter  of  procedure  or 
some  matter  of  minor  importance.  The  opinions  are 
announced  at  the  opening  of  the  public  sittings  of 
the  court,  when  two  or  more  of  the  judges  are 
present,  and  are  then  filed  by  the  clerk  with  the  other 
papers  in  the  case,  and  when  a  sufficient  number  of 
such  opinions  are  rendered,  they  are  then  published 
by  the  official  reporter  in  a  volume,  constituting  the 
official  reports  of  such  decisions. 

With  the  procedure  of  the  judges,  after  the  case 
has  been  argued  and  submitted,  and  prior  to  the  an- 
nouncement of  the  decision  by  the  court,  the  attor- 
neys of  the  parties  have  no  concern,  and  can  take  no 
action.  The  judges  apportion  the  cases  submitted 
among  themselves,  as  they  deem  most  suitable  to 
their  convenience,  the  only  rule  in  regard  to  the 
opinions  being  that  a  judge  shall  not  participate  in 
the  decision  of  the  case,  where  he  was  counsel  or  sat 
as  the  trial  judge  in  the  case,  unless  his  concurrence  be 
necessary  to  render  a  decision. 

Rehearing  of  Causes. 

Sec.  157.  The  next  step  after  the  announcement 
of  the  decision  by  the  court,  if  deemed  necessary  by 
the  unsuccessful  party,  is  to  apply  for  a  rehearing,  if 
the  party  deems  that  important  questions,  vital  to  a 

35 


274  Practice  in  Courts  of  Review. 

proper  decision  of  the  cause,  have  been    overlooked 
by  the  court  in  its  opinion. 

An  appHcation  for  a  rehearing  is  somewhat  similar 
to  an  application  for  a  new  trial  in  a  trial  court. 
There  being  no  statute  which  regulates  the  time  and 
manner  of  applying  for  a  rehearing,  the  courts  of 
review  have  adopted  the  following  rule  in  relation 
thereto: 

"  Application  for  rehearing  of  any  cause  shall  be 
by  petition  to  the  court,  signed  by  counsel,  briefly 
stating  the  points  wherein  it  is  alleged  that  the  court 
erred,  such  petition  to  be  filed  within  fifteen  days 
next  after  the  filing  of  the  opinion  in  the  cause. 
Counsel  may  accompany  such  petition  with  a  brief 
of  the  authorities  relied  upon  in  support  thereof. 

"  The  filing  of  a  petition  for  a  rehearing  shall  sus- 
pend proceedings  under  the  decision,  until  the   peti- 
tion is  disposed  of,  unless  the  court  in  term  time  or 
one  of  the  justices  in  vacation  shall  otherwise  order. 
"  It  must  be  borne  in  mind  that  though  the  court 
does  not,  in   the  written   opinion,  express   its  views 
upon  every  point  which  is  discussed  in  the  briefs  and 
arguments    of    counsel,    such    failure    to  express  its 
opinion  on  the  omitted   points   is   no  evidence  that 
the  point  omitted  has  not  been  considered  and  passed 
upon  by  the  court  in  its  consideration  of  the  case.      It 
is  the  practice  of   the  court  to  express  its  views  in 
its  opinions  on  only  such  matters  as  it  considers  nec- 
essary to  a  just  decision  of  the  essential  questions 


Rehearing.  275 

involved  in  the  cause.  Hence  rehearino-s  are  allowed 
as  a  rule,  only  when  some  new  matter  or  point,  that 
is  essential  or  pertinent  to  a  proper  decision  of  the 
case,  has  not  been  considered  bv  the  court  in  the 
hearing  or  determination  of  the  case,  but  which,  if 
considered,  would  have  changed  or  modified  the 
opinion  and  decision  rendered. 

The  new  matter  or  point  pertinent  to  the  point  or 
decision  is  something  which  has  a  bearing  on  the 
questions  presented  at  the  formal  presentation  of  the 
case  to  the  court,  not  an  error,  which  is  disclosed  by 
the  record,  but  which  counsel  have  seen  fit  to  ignore 
in  presenting  their  case.  Hence  additional  averments 
or  evidence  are  not  permissible  on  rehearing,  and 
nothing  will  be  then  considered  except  that  which  is 
contained  in  the  original  transcript,  as  submitted. 

So  if  parties  do  not  take  the  trouble  to  call  the  at- 
tention of  the  court  to  errors  which  exist  in  the 
record  that  the  court  did  not  examine  and  pass  upon, 
propria  motu,  such  errors  are  no  ground  for  a  re- 
hearing. 

In  the  case  of  Knoth  v.  Barclay,  on  petition  for  a 
rehearing,  the  court  says:  "  It  is  the  duty  of  counsel 
to  present  all  the  questions  on  which  they  rely,  in 
their  briefs  and  arguments  in  the  first  instance,  and 
the  court  in  reviewing  the  cause  does  not  usually  go 
beyond  the  subjects  to  which  its  attention  is  thus  in- 
vited. Counsel  are  not  permitted  to  present  part 
of  their  case  at  the  formal  submission  and  the  re- 


2/6  Practice  in  Courts  of  Review. 

mainder  at  the  rehearing.  If  they  have  discussed 
all  the  errors  and  defects  upon  which  they  rely,  but 
after  the  submission  some  new  matter  or  point  bearing 
on  those  errors  or  defects  be  discovered,  or  if  it  is  be- 
lieved that  the  court  has  overlooked  something  which 
is  material  to  a  correct  conclusion  thereon,  a  rehear- 
ing is  in  order. "^ 

It  is  held  by  the  Illinois  courts  that  the  time  for 
taking  an  appeal  from  the  final  judgment  of  the  ap- 
pellate court  to  the  Supreme  Court  is  not  extended 
by  the  pendency  of  a  petition  for  a  rehearing  in  the 
appellate  court.  The  appeal  to  the  Supreme  Court, 
if  an  appeal  lies  thereto,  must  be  asked  and  allowed 
within  the  time  prescribed  by  the  statute,  notwith- 
standing the  pendency  of  the  petition  for  rehearing, 
though  such  petition  be  as  yet  undetermined  by  the 
court.  This  question  has  not  been  raised  as  yet  in 
Colorado,  but  the  ruling  will  probably  be  followed, 
in  analogy  to  the  ruling  that  an  appeal  to  the  Su- 
preme Court  must  be  prayed  in  a  trial  court  of  record, 
within  the  time  fixed  by  the  statute,  though  a  motion 
for  a  new  trial  be  then  pending  therein.^ 

Upon  the  determination  of  a  petition  for  a  rehear- 
ing, or  if  no  such  petition  have  been  filed  within  yf/^ 
teen  days  after  the  final  judgment,  the  clerk  issues  to 
the  trial  court  in  proceedings  by  appeal  or  writ  of 

'  Knoth  V.  Barclay,  8  Colo.  305;  Parks  v.  Wilcox,  6  Colo.  600; 
Supreme  Court  Rules  32,  33  and  34. 

'■^  Goldsborough  V.  Gable,  39  111.  App.  279;  Oberne  v.  Bunn,  39 
111.  App.  127. 


Procedure  after  Judgment.  277 

error,  or  in  original  proceedings  in  the  Supreme 
Court,  a  certified  copy  of  the  final  judgment,  and  on 
payment  by  the  party  who  asks  for  such  copy  of  any 
balance  of  costs  due  the  clerk,  the  clerk  issues  a  fee- 
bill  or  execution  out  of  the  court  of  review. 

Procedure  in  Trial  Court  on  Affirmance  or  Dis- 
missal IN  THE  Court  of  Review. 

Sec.  158.  "  When  an  appeal  or  writ  of  error  shall  be 
prosecuted  from  the  judgment  of  any  court  of  record 
of  this  State  to  the  Supreme  Court,  and  said  appeal  or 
writ  of  error  shall  be  dismissed,  or  the  judgment  of 
the  lower  court  affirmed,  it  shall  be  the  duty  of  the 
clerk  of  the  court  from  which  said  appeal  or  writ  of 
error  was  prosecuted,  upon  a  copy  of  the  order  of  the 
Supreme  Court  dismissing  said  appeal  or  writ  of 
error,  or  affirming  said  judgment,  being  filed  in  his 
office,  to  issue  execution  upon  said  judgment,  and  to 
proceed  thereon  in  all  respects  as  though  no  appeal 
or  writ  of  error  had  been  prosecuted  from  said  judg- 
ment." 

The  above  section  is  a  substantial  copy  of  the 
Illinois  statute  of  1845,  which  has  been  construed  by 
the  Supreme  Court  of  that  State,  in  Smith  v.  Stevens, 
133  111.  189.  The  objection  was  there  made  that  no 
writ  o{ procedendo  was  ever  issued  from  the  Supreme 
Court  to  the  trial  court  in  the  case,  and,  therefore, 
that  the  trial  court  was  never  reinvested   with  juris- 


2/8  Practice  in  Courts  of  Review. 

diction  over  the  judgment.      The    court    answering 
the  objection  says: 

"  The  mode  by  which  the  Circuit  (trial)  Court 
may  be  reinvested  with  jurisdiction  of  a  judgment, 
which  has  been  removed  to  this  court  by  appeal,  after 
the  affirmance  of  such  judgment  by  this  court,  is  pre- 
scribed by  the  eighty-third  section  of  the  Practice 
Act,"  which  is  substantially  the  same  as  the  above 
Code  provision. 

A  copy  of  the  order  of  affirmance,  or  dismissal, 
having  the  effect  of  an  affirmance,  is  to  be  filed  in  the 
office  of  the  clerk  of  the  court  below  to  reinvest  that 
court  with  jurisdiction  to  proceed  with  the  execution 
of  its  judgment.  *  *  *  According  to  the  usual  prac- 
tice of  this  court,  no  subsequent  order  is  made.  The 
judgment  of  affirmance  is  the  final  order,  and  termi- 
nates the  litiofation  so  far  as  this  court  is  concerned. 
A  certified  copy  of  that  order,  when  filed  in  the  court 
below,  operates  as  a  procedendo,  and  authorizes  that 
court  to  proceed  with  the  judgment  in  all  respects  as 
though  no  appeal  had  been  taken. "^ 

In  criminal  cases  a  remittitur  would  probably  be 
indispensable,  since  the  above  provision  is  found  only 
in  the  Civil  Code,  and  is,  therefore,  inapplicable  to 
criminal  causes. 


'  Code  of  1887,  §  399;  Smith  v.  Stevens,  133  111.  189. 


Trial  in  Criminal  Cases.  279 


CHAPTER  X. 

Writ  of  Error  in  Criminal  Cases. 

S^C.   1 59.  Criminal  trials  according  to  the  course  of  tiie  common  law. 

160.  Writ  of  error  a  writ  of  right. 

161.  Exceptions  and  bill  of  exceptions. 

162.  Who  may  take  exceptions  in  criminal  cases. 

163.  The  record  proper  in  criminal  cases. 

164.  Supersedeas^  how  obtained 

165.  Elifect  of  supersedeas,  bail. 

166.  Reversible  error  in  criminal  cases. 

167.  Procedure  after  judgment  of  Supreme  Court. 

Trials  in    Criminal  Cases  Required  to  be  Con- 
ducted AS  AT  THE  Common  Law. 

Sec.  159.  The  common  law  of  England,  as  adopted 
in  the  State  of  Colorado,  is  the  mere  creature  of  the 
statute  adopting  it,  and  does  not  exist  by  virtue  of 
its  being  subject  to  the  common  law  as  being  part  of 
British  territory,  prior  to  its  acquisition  by  the 
United  States.  It  must  be  remembered  that  the 
territory  which  is  included  in  the  State  of  Colorado 
was  originally  subject  to  the  civil  law,  as  was  all  the 
country  west  of  the  Mississippi  river,  and  that  there 
being-  no  common  law  under  the  United  States 
Federal  government,  the  civil  law  would  have  con- 
tinued to  govern,  until  by  State  or  Territorial  legisla- 


28o  Practice  in  Courts  of  Review. 

tion  the  common  law  was  substituted  for  it.  Hence 
when  the  common  law  was  adopted  by  Territorial 
authority,  it  was  adopted  under  such  restrictions  and 
limitations  as  the  legislature  saw  fit  to  make.  It  was 
the  enactment  of  a  law  establishing  a  new  rule,  and 
not  of  a  restriction  on  an  established  rule,  which  left 
in  full  force  the  rule  only  as  it  was  limited  by  the 
legislation. 

By  express  statute,  all  trials  for  criminal  offenses 
against  the  laws  and  under  the  Criminal  Code  of 
Colorado,  in  courts  of  record  of  the  State,  must  be 
conducted  as  they  were  conducted  in  the  law  courts 
of  England  prior  to  the  fourth  year  of  James  the 
First,  and  the  rules  of  evidence  in  such  courts,  as  they 
then  existed,  are  binding  on  all  courts  of  record, 
which  have  jurisdiction  of  criminal  cases,  unless 
changed  by  statute  of  the  State.^ 

The  provisions  of  the  Civil  Code  not  having  any 
application  whatever  to  criminal  procedure,  all  modi- 
fications or  alterations  of  the  procedure  in  criminal 
cases  must  be  looked  for  in  general  laws,  which  do 
not  profess  to  amend  the  Civil  Code.  Thus  the  Civil 
Code  provisions  regulating  procedure  in  the  courts 
are  applicable  to  criminal  procedure  only  in  those 
particulars  wherein  the  Civil  Code  provisions  and 
the  Rules  at  common  law  are  identical.  If  the  Civil 
Code  makes  any  change  in  the  common-law  rules, 
that  change  does  not  apply  to  the  procedure  in  crimi- 

1  Mills'  Stat,  §  1467. 


Writ  of  Error  in  Capital  Cases.  281 

nal  cases.  Thus  the  Code  provisions,  which  make  in- 
structions and  certain  classes  of  motions  a  part  of 
the  record  proper,  which  were  necessarily  to  be 
brought  up  by  a  bill  of  exceptions,  under  the  com- 
mon-law procedure,  will  not  be  applicable  in  a  crimi- 
nal case.  The  record  proper  is  in  such  cases,  under 
the  Colorado  procedure,  the  same  as  it  is  at  com- 
mon law. 

In    Criminal    Cases,    not    Capital,    a    Writ   of 
Error  is  a  Writ  of  Right. 

Sec.  160.  At  the  common  law,  as  it  existed  prior 
to  fourth  year  of  James  the  First  in  England,  a  writ  of 
error  in  a  case  of  felony,  which  was  then  in  most 
cases  a  capital  offense,  was  obtainable  only  as  a  mat- 
ter of  favor,  on  application  to  the  attorney-general, 
and  then  only  on  a  showing  of  the  existence  of  ma- 
terial error  in  the  record  proper.  Without  the.  jfia^ 
of  the  attorney  general  a  writ  of  error  to  a  final 
judgment,  in  a  prosecution  for  a  felony,  could  not  be 
obtained.  When  allowed,  nothing  could  be  reviewed 
under  it  but  the  record  proper,  as  a  bill  of  exceptions 
was  not  allowed  in  cases  of  felonies  to  be  made  a 
part  of  the  record,  and  for  that  reason  such  matters 
as  could  only  be  incorporated  into  the  record  by  a 
bill  of  exceptions,  under  the  practice  in  civil  cases, 
could  not  be  brought  before  the  court  of  review  for 
revision.^ 

'  I  Bacon  Abr.  453,  528. 
36 


282  Practice  in  Courts  of  Review. 

But  by  express  statute  this  provision  of  the  com- 
mon law  has  been  abrogated,  and  in  all  cases  not 
capital  a  writ  of  error  to  the  final  judgment  of  the 
court  in  a  criminal  case,  whether  it  be  a  felony  or  a 
misdemeanor,  is  a  writ  of  right,  and  issuable,  of 
course,  without  the  necessity  of  applying  to  the 
court  for  its  allowance.* 

But  in  cases  where  a  sentence  of  death  is  pro- 
nounced by  the  trial  court,  a  writ  of  error  is  not  a 
writ  of  right,  but  can  be  issued  only  on  an  applica- 
tion to  the  Supreme  Court,  which  alone,  under  the 
act  of  1 89 1,  has  jurisdiction  to  review  cases  of  this 
character;  or  if  the  court  be  not  sitting,  to  one  of  the 
justices  of  the  Supreme  Court.  The  statute  makes 
no  provision  for  its  allowance  by  any  other,  in  the 
absence  or  inability  of  the  justices  of  that  court  to 
act  in  the  particular  case.'^ 

The  distinction,  in  the  obtaining  of  the  writ  of 
error,  between  the  procedure  in  capital  cases  and  in 
other  criminal  cases  ought  to  be  carefully  observed, 
though  in  practice  the  difference  is  hardly  noticeable, 
since  a  writ  of  error  does  not  stay  proceedings  in  the 
execution  of  the  sentence,  unless  a  supersedeas  order 
is  had,  which  latter  must  be  applied  for  to  one  of  the 
justices,  in  vacation,  or  to  the  court  if  it  be  in  session. 
Except  in  capital  cases,  the  Court  of  Appeals  has 
concurrent  jurisdiction  with  the  Supreme   Court  in 


'Mills'  Ann.  Stats..  §  1479. 
''Mills'  Ann.  Stats.,  §  1478. 


Bill  of  Exceptions  in  Criminal  Cases.       283 

all  criminal  causes,  and  a  writ  of  error  may  be  issued 
out  of  it,  and  it  may  grant  a  supersedeas  in  the  same 
manner  that  the  Supreme  Court  can. 

In  proceeding  under  the  Colorado  procedure, 
practitioners  will  note  that  but  few  of  the  States  fol- 
low the  common  law  as  nearly  as  does  Colorado  and 
Illinois.  Almost  every  other  State  has  its  own 
peculiar  Code  of  Criminal  Procedure,  by  which  crim- 
inal prosecutions  in  such  States  are  governed. 
Hence,  many  of  the  decisions  of  those  States,  as  to 
the  mode  of  procedure,  are  inapplicable  wherever 
such  decisions  depart  in  any  manner  from  the  pro- 
cedure at  the  common  law,  unless  the  statutory 
enactment  and  that  of  Colorado  are  identical. 

But  as  most  of  the  Criminal  Code  of  Colorado  has 
been,  in  substance,  taken  from  the  statutes  of  Illi- 
nois, the  decisions  of  the  Supreme  Court  of  Illinois 
will  in  most  cases  have  a  controlling  effect,  and  are 
usually  adopted  by  the  Colorado  courts  of  review. 

The  court  of  review  can  acquire  jurisdiction  in 
a  criminal  case  only  through  a  writ  of  error  duly 
issued.  Jurisdiction  cannot  be  taken  by  an  agree- 
ment of  parties.^ 

Exceptions  and  Bills  of  Exceptions. 

Sec.  161.  In  most  criminal  cases,  a  writ  of  error, 
if  limited  to  the  review  of  the  record  proper,  as  was 
the  common-law  rule,  would  be  of  but  little  if  any 

1  People  V.  Myers,  i  Colo.   509;  Mohler  v.  People,  24  III.  26. 


284  Practice  in  Courts  of  Review. 

benefit  to  the  accused.  Experience  teaches  that 
errors,  if  any,  usually  occur  in  the  admission  or  rejec- 
tion of  evidence  and  other  matters,  which  can  be 
brouo-ht  to  the  attention  of  the  court  of  review  only 
by  a  bill  of  exceptions,  and  if  the  common-law  rule 
were  followed,  such  errors,  be  they  ever  so  injurious 
to  the  accused,  could  not  be  remedied.  Hence  the 
statute  provides  : 

"  That  exceptions  taken  to  opinions  and  decisions 
of  any  court  in  this  State,  refusing  motions  in  arrest 
of  judgment,  for  new  trials  or  for  continuances  or 
change  of  venue  shall  be  allowed  in  criminal  cases. 
*  *  ^•*  And  the  party  excepting  to  such  decisions 
may  assign  the  same  for  error  in  the  same  manner  as 
in  civil  cases. "^ 

The  statute  further  provides  that : 
"In  the  trial  of  any  person  or  persons  for  any 
crime  or  misdemeanor,  it  shall  be  the  duty  of  the 
judge  before  whom  such  trial  is  pending,  to  sign  and 
seal  any  bill  of  exceptions  tendered  to  the  court  dur- 
ing the  progress  thereof,  provided,  that  the  truth  of 
the  case  be  fairly  stated  in  such  bill  of  exceptions  ; 
and  thereupon  said  exceptions  shall,  by  the  clerk  of 
said  court,  be  entered  in  the  record  of  said  trial  and 
become  for  all  intents  and  purposes  a  part  thereof."'' 
It  will  be  noted  that  the  foregoing  statute  does  not 
provide  that  a  bill  of  exceptions   may   be  prepared 

1  Mills'  Stats.,  §  1497- 
Mills'  Stats.,  §   1477- 


Duty  of  Judge.  285 

after  the  expiration  of  the  term,  as  is  expressly  per- 
mitted in  civil  cases  by  section  385  of  the  Civil  Code, 
and  be  tendered  to  the  judge  for  his  seal  and  signa- 
ture "  at  any  time  thereafter  to  be  fixed  by  the  court." 
Hence,  to  comply  with  the  law  strictly,  a  bill  of  ex- 
ceptions, in  criminal  cases,  must  be  tendered  "  during 
the  progress  of  the  trial."  But  as  the  term  of  the 
court  is  ordinarily  treated  as  one  day,  no  matter  how 
many  days,  weeks  or  months  it  may  continue  in  ses- 
sion, and  as  the  trial  is  regarded  as  in  progress  from 
its  inception  to  the  sentence  of  the  accused,  on  a  ver- 
dict of  the  jury  finding  the  accused  guilty,  a  liberal 
construction  of  these  words  gives  the  whole  term  for 
the  preparation  of  the  bill  of  exceptions.  In  counties 
wherein  the  session  of  the  court  is  limited  to  a  few 
days,  if  it  be  necessary  to  do  so,  to  enable  counsel  to 
prepare  the  bill,  the  court  will  usually  postpone  the 
sentence  until  the  last  hour  of  the  sitting  for  the 
term,  and  thus  enable  him  to  tender  his  bill  in  the 
time  prescribed  by  the  statute. 

The  statute  nowhere  empowers  the  judge  to  sign 
and  seal  a  bill  of  exceptions,  in  a  criminal  case,  at 
any  time,  except  "  during  the  progress  of  the  trial.'' 
Hence  it  seems  that  an  order  of  the  court,  made  in 
term  time,  allowing  the  bill  to  be  tendered  and  filed 
after  the  expiration  of  the  term,  is  a  nullity,  in  a  crimi- 
nal case,  though  legitimate  in  a  civil  case.  And  if 
the  bill  of  exceptions,  as  brought  to  the  notice  of  the 
court  of  review,  shows  that  it  was  signed  and   sealed 


286  Practice  in  Courts  of  Review. 

by  the  court,  after  the  time  fixed  by  law,  on  motion 
it  will  be  stricken  from  the  record.  But  if  it  be 
made  to  appear  that  the  bill  was  duly  prepared  and 
tendered  to  the  judge  within  the  term,  and  that  the 
failure  to  sign  it  and  seal  it,  and  file  it  with  the  clerk 
was  occasioned  wholly  by  neglect  on  the  part  of  the 
judge,  the  party,  especially  in  a  criminal  case,  will 
not  be  prejudiced  by  such  neglect  or  failure  of  the 
judge  to  sign  it  in  time.^ 

It  is  further  to  be  borne  in  mind  that  no  provision 
is  made  by  the  statute  for  a  remedy,  where  the  judge 
neglects  or  refuses  to  sign  a  bill  of  exceptions,  duly 
tendered  to  him  in  time.  The  party  in  such  case 
must  apply  to  the  court  of  review  for  a  mandamus  to 
compel  him  to  sign  and  seal  such  bill.  The  m-anda- 
mus  in  such  case  is  not  an  ordinary  writ,  but  is  issued 
in  aid  of  the  jurisdiction  of  the  court  of  review,  and 
for  that  reason  the  Court  of  Appeals  may  issue  it  in 
a  case  of  which  it  has  acquired  jurisdiction  by  a  writ 
of  error,  duly  issued  out  of  such  court.^  The  pro- 
vision authorizine  the  authentication  of  a  bill  of 
exceptions  by  affidavits  is  applicable  only  to  civil 
cases. 

The  rules  governing  bills  of  exceptions,  as  herein- 
before explained  in  civil  cases,  apply  also  to  bills  of 
exceptions  in  criminal  cases.  The  law  governing 
them  as  to  the  matters  that  must  be  included  therein 


1  Hawes  v.  People,  129  III.  127. 

^People  V.  Anthoney,  129  111.  223;  Hawes  v.  People,  129  III.  128; 
Smith  V.  People,  i  Colo.  131. 


Bill  of  Exceptions.  287 

is  that  which  was  in  existence  at  the  time  of  the 
adoption  of  the  Code  of  Civil   Procedure. 

The  bill  must  show  on  its  face  that  the  exception 
was  duly  taken  and  reserved,  at  the  time  of  the  ruling 
or  decision  excepted  to,  and  not  at  a  time  subsequent 
thereto.  If  an  objection  is  made  to  the  introduction 
or  exclusion  of  any  evidence  offered  at  the  trial,  or 
to  any  other  matter,  a  ruling  and  decision  thereon 
must  be  asked  of  the  court,  and  it  must  show  an  ex- 
ception then  taken  and  preserved.  If  the  court  re- 
fuse to  rule  thereon,  an  exception  should  be  taken  to 
his  refusal  to  rule  and  determine  the  matter. 

When  preparing  the  bill  of  exceptions,  the  counsel 
will  bear  in  mind  that  there  is  a  material  difference 
between  civil  and  criminal  trials.  While  the  rule  ap- 
plicable to  both  classes  of  cases  is  uniform,  that  the 
plaintiff  in  error  is  required  to  show  error  in  the 
record  affirmatively,  yet  if  the  matter  assigned  for 
error  involves  discretion,  presumption  or  construc- 
tion, affecting  a  substantial  right  of  the  accused,  the 
court  must  solve  such  matters,  in  case  of  doubt,  in 
favor  of  the  accused.  The  court  will  give  the  accused 
the  benefit  of  the  doubt.  Thus  in  criminal  matters 
the  court  will  not  be  governed  by  the  presumption, 
as  against  the  accused,  that  all  that  is  done  is  rightly 
done,  but  will  ^^  *  *  rigidly  apply  the  rule  in 
favor  of  the  accused,  that  intention  and  mental  ca- 
pacity to  commit  the  crime  are  essential  ingredients 
of  a  crime. 


288  Practice  in  Courts  of  Review. 

The  bill  must  be  signed  and  sealed  by  the  judge 
as  in  civil  cases.  It  cannot  be  made  a  bill  of  excep- 
tions by  a  stipulation  of  counsel,  whether  made  in  the 
trial  court  or  in  the  court  of  review. 

As  the  failure  to  seal  a  properly  prepared  bill  of 
exceptions  arises  in  a  great  many  cases  from  mere 
inadvertence,  we  would  suggest  that  counsel,  espec- 
ially when  the  errors  assigned  are  chiefly  to  be  found 
in  the  bill,  specially  examine  the  bill  as  filed  in  the 
trial  court,  as  well  as  the  copy  attached  to  the  tran- 
script, and  if  the  error  be  in  the  sealing  of  the  orig- 
inal bill,  take  proper  measures  to  have  the  judge  seal 
it.  If  the  error  be  in  the  copy,  the  clerk  should  be 
applied  to  correct  his  omission. 

Who  May  Take  Exceptions  in  Criminal  Cases. 

Sec.  162.  As  the  matters  to  which  exceptions  may 
be  taken  in  a  criminal  case,  under  section  1497  of 
Mills'  Statutes,  seem  to  be  such  matters  as  may  in- 
juriously affect  a  defendant  only,  it  would  appear  that 
a  defendant  alone  can  take  exceptions  to  the  adverse 
rulings  of  the  court  in  the  case.  But  section  1477 
seems  to  be  broad  enough  in  its  language  to  permit 
exceptions  to  be  taken  by  the  prosecution,  the  words 
"any  bill  of  exceptions  tendered  to  the  court  during 
the  progress,"  etc.,  being  an  apparently  sufficient  au- 
thority to  authorize  the  prosecution  to  take  excep- 
tions, and  present  a  bill  for  the  signature  and  seal  of 
the  judge.     No  harm  can  arise  to  the  defense  by  al- 


The  Record  in  Criminal  Cases.  289 

lowing  the  prosecution  to  take  exceptions,  since  the 
people  not  being  authorized  to  prosecute  a  writ  of 
error  in  a  criminal  case,  the  bill  will  be  unavailable, 
unless  the  defendant  prosecutes  a  writ  of  error  to  a 
judgment  of  conviction,  in  which  case  the  alleged 
errors  of  the  trial  court,  as  against  the  prosecution, 
might  be  reviewed  on  an  assignment  of  cross-errors, 
and  many  questions  now  held  in  doubt,  both  as  to  the 
law  and  procedure,  may  be  solved  with  great  benefit 
to  the  administration  of  the  criminal  law  of  the  State. 

While  no  statute  authorizes  the  assignment  of 
cross-errors  in  criminal  cases,  the  rule  of  the  Su- 
preme Court  as  to  cross-errors  might  be  construed 
to  authorize  such  assignment  by  the  prosecution, 
when  defendant  takes  his  writ  of  error. 

The  foregoing  statute  as  to  bill  of  exceptions  in 
criminal  cases  is  substantially  the  same  as  that  of 
Illinois,  from  which  it  seems  to  have  been  taken, 
and,  therefore,  many  of  the  decisions  of  that  State 
thereon  will  be  found  applicable 

The  Record  Proper  in  Criminal  Cases. 

Sec.  163.  In  a  criminal  case  the  record  proper  is 
usually  very  brief.  It  will  consist  of  the  placita  or 
convening  order,  as  hereinbefore  explained,  the  pres- 
ence of  the  district  attorney  being  noted  in  the 
placita;  the  impaneling  of  the  grand  jury  where 
the  prosecution  is  by  an  indictment ;  the  return  of 
the  grand  jury  and  the  presentation  by  it  of  an 
37 


290  Practice  in  Courts  of  Review. 

indictment  against  the  defendant,  duly  indorsed  "  a 
true  bill  "  and  a  copy  of  the  bill  so  returned  and  filed. 
If  the  prosecution  be  by  information,  the  filing  of 
such  information  and  a  copy  thereof,  must  be  stated. 
The  record  should  then  show  the  judge's  indorse- 
ment of  the  amount  of  bail,  the  order  for  capias 
to  issue,  the  arraignment  and  plea  of  the  defendant ; 
that  he  was  furnished  a  copy  of  the  indictment  and  a 
list  of  the  jurors  and  people's  witnesses  ;  that  he  was 
assigned  counsel,  if  he  was  unable  to  employ  counsel 
by  reason  of  poverty,  and  if  for  the  same  reason  he 
was  unable  to  procure  the  attendance  of  the  neces- 
sary witnesses  on  his  behalf,  that  the  court  made 
the  necessary  order  for  their  attendance  at  the  costs 
of  the  people;  that  defendant  was  present  at  every 
stage  of  the  proceeding,  accompanied  by  his  counsel, 
especially  at  the  rendering  of  the  verdict,  at  the  hear- 
ing of  the  motions  for  a  new  trial  and  in  arrest  of 
judgment,  if  any  are  made;  the  verdict  of  the  jury, 
the  judgment  and  sentence  pronounced  by  the  court. 
All  the  orders  made  and  entered  of  record  in  the 
course  of  the  proceeding  should  also  be  transcribed 
into  the  record. 

The  record  must  be  made  up  as  it  was  at  com- 
mon law  practice,  nothing  being  inserted  therein,  but 
what  is  properly  part  of  the  record  at  the  common 
law.  The  same  provisions  that  apply  to  prosecutions 
by  indictment  apply  in  like  manner  to  prosecutions 
by  information,  under  the  act  of  1891. 


Informations.  291 

All  that  has  been  hereinbefore  said  as  to  the  record 
in  civil  cases  will  apply  equally  to  criminal  cases, 
excepting  the  modifications  made  by  the  Civil  Code 
as  to  parts  of  the  record  in  the  rules  as  they  exist  at 
common  law. 

In  criminal  prosecutions  by  information,  recently 
adopted  in  the  Colorado  procedure  from  Wisconsin 
substantially,  the  objections  to  the  right  of  the  dis- 
trict attorney  to  file  the  information  for  a  non-com- 
pliance with  the  eighth  section  of  the  Information 
Act,  must  be  raised  in  the  trial  court  by  a  plea  in  abate- 
ment and  not  by  a  motion  to  quash.  This  plea  and 
the  replication  by  the  district  attorney,  or  his 
demurrer,  if  he  file  one,  will  appear  in  the  record,  and 
need  not  be  copied  into  a  bill  of  exceptions.  But 
motions  to  quash  the  information  for  any  thing  that 
appears  on  its  face  are  properly  to  be  incorporated 
into  the  bill  of  exceptions. 

All  pleadings  are  part  of  the  record  proper,  but 
the  rule  at  common  law  is,  that  all  motions  and  ex- 
ceptions to  rulings  during  the  progress  of  the  trial 
must  be  preserved  and  brought  to  the  attention  of 
the  court  of  review  by  a  properly  authenticated  W\\\ 
of  exceptions,  if  it  is  desired  that  the  motions  and  ex- 
ceptions be  reviewed.  A  recital  in  the  record  by  the 
clerk,  that  an  exception  was  taken  or  allowed,  is  not 
sufficient.^ 


'  Rutler  V.  Shumway,    i6  Colo.   95;     Bank  v.   Elwood,   16    Colo. 
244. 


292  Practice  in  Courts  of  Review. 

In  Parker  V.  People  the  Supreme  Court  of  Colorado 
say:  If  plaintiffs  in  error  desire  a  review  of  the  pro- 
ceedings had  in  impaneling  the  grand  jury,  they 
should  have  brought  the  whole  record  up.  It  is  not 
necessary  to  have  the  record  of  the  formation  of  the 
grand  jury  repeated  in  each  particular  case  taken  to 
the  court  of  review.  If  any  irregularity  is  claimed  to 
exist  in  its  formation  such  irregularity  must  be  pre- 
sented to  the  trial  court  by  plea  before  the  com- 
mencement of  the  trial,  the  ruling  of  the  court  had 
thereon,  and  such  ruling  assigned  for  error  in  both 
the  assignments  of  error  and  briefs.  It  is  only 
when  irregularity  is  claimed  in  the  formation  of  the 
grand  jury,  and  an  assignment  of  error  is  based 
thereon  that  it  becomes  necessary  to  incorporate  the 
proceedings  in  the  selection  and  impaneling  of  the 
grand  jury  into  the  record.^ 

So  it  is  not  indispensable  that  the  records  show  that 
defendant  was  served  with  a  copy  of  the  indictment  or 
information  and  a  list  of  jurors  previous  to  his  ar- 
raip-nment.  The  statute  does  not  require  this  to  be 
made  a  part  of  the  record,  but  the  better  practice  is 
to  make  this  fact  appear  affirmatively  by  the  record. 
If,  however,  this  is  not  in  fact  done,  the  defendant 
should  make  a  demand  for  such  copy  and  list  of 
jurors,  and  if  such  demand  be  then  refused  he  should 
take  an   exception  to   such   refusal  and   incorporate 


1  Parker  v.  People,  13  Colo.  155. 


Supersedeas.  293 

such  demand  and  refusal  and  his  exception  tnereto 
in  his  bill  of  exceptions.^ 

So  the  recital  by  the  clerk  in  the  record,  that  a 
motion  for  a  new  trial  was  made,  heard  by  the  court, 
overruled,  and  exception  taken  thereto,  is  no  part  of 
the  record,  and  should  not  be  incorporated  therein. 
If  a  new  trial  is  asked,  which  should  be  done  in  crimi- 
nal cases,  if  it  is  intended  to  take  the  cause  to  a 
court  of  review,  since  the  Code  provision  dispensing 
with  motions  for  new  trial,  under  certain  circumstan- 
ces, is  inapplicable  to  criminal  cases,  the  motion,  ruling 
of  the  court,  and  exception  thereto  must  be  incorpo- 
rated in  a  bill  of  exceptions. 

So,  if  the  defendant  makes  the  proper  affidavit  to 
procure  the  attendance  of  his  witnesses  at  the  public 
expense,  and  his  application  therefor  is  refused,  he 
should  incorporate  his  affidavit  and  motion  in  the  bill 
of  exceptions,  if  he  desire  to  assign  error  thereon. 
The  record  order  denying  the  application  will  not 
bring  such  application  and  ruling  to  the  attention  of 
the  court  of  review. 

Supersedeas,  how  Obtained. 
Sec.  164.  In  most  cases,  the  principal  object  in  prose- 
cuting a  writ  of  error  in  a  criminal  case  is  to  obtain  a 
supersedeas,  or  stay  of  execution  of  the  judgment  and 
sentence  of  the  court,  until  the  decision  of  the  Su- 
preme Court  is  had.  A  writ  of  error  in  cases  not  capi- 
>  Kelley  v.  People,  132  111.  371. 


294  Practice  in  Courts  of  Review, 

tal  does  not  operate  to  stay  execution  of  the  sentence 
pronounced  by  the  trial  court.      A  special  application 
for  a  supersedeas  must  be  made  therefor.      The  stat- 
ute in  reoard  to  obtaining  a  supersedeas  in  non-capital 
cases  is  as  follows: 

"No  writ  of  error  shall  be  a  supersedeas  unless  the 
Supreme  Court,  or  one  of  the  justices  thereof  in  va- 
cation, after  inspecting  a  copy  of  the  record,  certified 
as  in  the  preceding  section  (Mills'  Stat..  §  1478), 
together  with  an  assig^nment  of  errors  relied  on  for  a 
reversal  of  the  judgment,  shall  be  of  opinion  that 
there  is  reasonable  cause  for  allowing  a  writ  of  error. 
In  such  case  the  supersedeas  is  granted  by  order  in- 
dorsed on  the  back  of  such  record,  in  which  case  the 
clerk  of  the  Supreme  Court  shall  issue  a  supersedeas, 
which  shall  have  the  effeet  to  stay  the  execution  of 
the  sentence,  but  not  discharge  the  prisoner  from 
custody." 

In  capital  cases  a  writ  of  error,  under  the  statute, 
does  not  issue  of  course,  as  in  ordinary  felonies  and 
misdemeanors,  but  is  obtainable  only  on  an  applica- 
tion to  the  Supreme  Court,  or  in  vacation  to  one  of 
the  justices  of  the  Supreme  Court.  The  statute  re- 
quires that  the  party  complaining  of  error  in  the 
record  in  any  capital  prosecution  shall.  First,  obtain 
from  the  clerk  of  the  trial  court  a  certified  copy  of  the 
record  ;  Second,  from  the  trial  judge,  or  from  the  per- 
son who  acted  as  the  prosecuting  attorney  in  that 
case,  a  certificate  expressive  of  an  opinion   that  said 


Supersedeas  —  Bail.  295 

record,  obtained  from  the  clerk,  contains  a  full  and 
true  history  of  the  proceedings  on  the  trial  ;  Third, 
the  record  so  obtained  and  certified  must  then  be  pre- 
sented to  the  Supreme  Court,  or  if  it  be  in  vacation 
of  the  court,  to  one  of  the  justices  thereof. 

Before  the  presentation  to  the  court  or  judge,  the 
rule  now  requires  that  the  record  be  filed  with  the 
clerk.  If  the  court  or  judge  be  of  opinion,  on  exami- 
nation of  the  record  and  the  assignment  of  errors 
appended  thereto,  that  reasonable  grounds  exist 
therein  for  an  allowance  of  the  writ  of  error,  an  order 
is  made  by  indorsing  the  same  on  the  back  of  the 
transcript,  and  the  supersedeas  is  issued  by  the  clerk.^ 

The  procedure  after  supersedeas  on  writ  of  error  is 
practically  the  same  in  both  civil  and  criminal  cases 

Effect  of  Supersedeas  —  Bail. 

Sec.  165.  The  allowance  of  a  sipersedeas,  which  is 
served  on  the  sheriff  or,  if  the  prisoner  have  been  com- 
mitted to  the  penitentiary,  on  the  warden  thereof,  is 
merely  to  suspend  the  execution  of  the  sentence.  It 
does  not  discharge  the  defendant  from  custody.  If 
the  offense  be  a  bailable  one,  and  the  court  or  justice 
be  of  the  opinion  that  he  ought  to  be  admitted  to 
bail  until  the  determination  of  the  writ  of  error,  the 
court  or  justice  may  make  an  order  that  defendant 
be  discharged  from  custody  upon  his  entering  into  a 
recoo-nizance  to  the  people  of  the  State,  before  the 

•  Mills'  Ann.  Stat,  §§  I478-I479- 


20  Practice  in  Courts  of  Review. 

sheriff  of  the  county  where  he  or  she  shall  be  im- 
prisoned, in  such  sum  and  with  such  security  as  said 
court  or  justice  shall  prescribe.  Said  recognizance 
shall  be  conditioned  that  the  prisoner  will  appear  in 
the  next  District  Court  to  be  holden  in  the  county 
where  the  trial  of  the  prisoner  took  place,  and  each 
subsequent  term  of  such  District  Court  on  the  first 
days  thereof,  until  the  determination  of  the  writ  of 
error,  and  that  he  will  be  present  and  submit  to  such 
order  as  the  Supreme  Court  shall  make  in  the  premi- 
ses, and  will  not  at  any  of  the  terms  of  said  court  in 
which  he  shall  be  bound  to  appear  by  said  recogni- 
zance, depart  the  court  without  leave. 

After  service  of  the  supersedeas,  the  procedure  as  to 
scire  facias,  filing  of  abstract,  and  briefs,  arguments, 
oral  and  written,  etc.,  is  the  same  as  in  civil  cases. 
The  scire  facias  is  served  on  the  attorney-general, 
as  representing  the  State,  under  the  provisions  of 
section  1783  of  Mills'  Statutes.  He  prepares  all 
briefs  on  behalf  of  the  State,  and  represents  the 
prosecution  on  the  oral  argument  of  the  case. 

Decisions  of  Supreme  Court  as  to  What  is  Re- 
versible Error  in  Criminal  Cases. 

Sec.  166.  Where  the  transcript  of  the  record  does 
not  show  that  the  indictment  was  brought  into  court 
by  the  grand  jury  and  presented  to  the  court  while 
it  was  judicially  sitting. 


Reversible  Error.  297 

Where  the  transcript  of  the  record  does  not  show 
that  defendant  was  arraigned  and  plead  to  the  indict- 
ment. 

Where  a  challenge  for  cause  to  a  juror  on  the 
regular  panel  of  jurors  for  the  term  is  sustained  on 
behalf  of  the  prosecution  on  insufficient  grounds 
whereby  the  regular  panel  is  depleted  and  recourse 
is  necessarily  had  to  a  tales  to  fill  up  the  panel,  and 
complete  the  trial  jury,  over  the  objection  of  the  de- 
fendant. 

To  try  a  person  charged  with  the  commission  of  a 
misdemeanor,  the  punishment  of  which  is  imprison- 
ment, in  his  absence  and  that  of  his  attorney. 

Where  the  transcript  of  a  bill  of  exceptions,  pur- 
porting to  set  out  all  evidence  heard  at  the  trial,  does 
not  contain  any  evidence  showing  where  the  offense 
was  committed.^ 

It  is  held  that  the  failure  to  read  the  indictment 
or  information  to  the  accused  is  at  most  an  irregular- 
ity, and  not  fatal  error,  since  the  statute  requires  that 
he  be  furnished  with  a  copy  of  the  indictment  or  in- 
formation, which  is  a  better  means  of  informing  him 
of  the  nature  of  the  charge  preferred  against  him 
than  the  reading  of  the  indictment  would  be. 

So  it  is  held  that  a  failure  to  furnish  a  list  of  the 
witnesses  and  trial  jurors  at  the  time  of  arraignment, 
and  before  plea,  is  not  fatal  error,  if  it   appear   from 

'Thornell  V.  People,  ii  Colo.   305;  Ray  v.  People,  6  Colo.    231; 
Stratton  V.  People,  5  Colo.   276;  Mooney  v.   People,   7   Colo.  218; 
Lawn  V.  People,  11  Colo.  343. 
38 


298  Practice  in  Courts  of  Review. 

the  record  that  such  lists  were  furnished  a  reason- 
able time  before  entering  on  the  trial,  and  there  is 
nothing  in  the  record  to  show  that  the  prisoner  was 
put  to  a  disadvantage  or  surprised,  or  his  rights 
prejudiced  by  the  failure  to  furnish  such  list  prior 
to  plea. 

So  it  is  held  that  the  finding  of  the  court  of  the 
fact  of  the  juror's  indifference  is  not  a  cause  of  as- 
signment of  error.^ 

So  it  is  held  fatal  on  error,  that  the  prisoner  was 
deprived  of  the  privilege  of  being  present  when  the 
verdict  is  returned  into  court. 

So  when  the  prosecuting  attorney  argued  on  mat- 
ters outside  of  the  record,  totally  irrelevant  to  the 
matters  at  issue,  and  which  had  not  been  admitted  in 
evidence,  in  his  closing  speech  to  the  jury,  over  the 
objection  of  defendant's  counsel,  and  exception  was 
duly  taken  thereto  and  reserved,  it  was  held  fatal 
error." 

So  in  a  prosecution  for  receiving  stolen  goods, 
the  failure  to  prove  the  ownership  of  the  goods,  and 
the  alleged  corporation's  de  facto  existence,  where  a 
corporation  is  alleged  to  be  the  owner  of  the  stolen 
goods,  is  fatal  error.^ 

'  Minich  v.  People,  8  Colo.  440  ;  Wilson  v.   People,  3  Colo.  325  ; 
Solander  v.  People,  2  Colo.  48  ;  Jones  v.  People,  2  Colo.  351. 
-Smith  V.  People,  8  Colo.  157. 
^  Miller  V.  People,  13  Colo.  166. 


Procedure  after  Judgment.  299 

Procedure   after   Judgment  of  Supreme   Court. 

Sec.  167.  The  Court  of  Appeals  has  concurrent 
jurisdiction  with  the  Supreme  Court  in  all  criminal 
cases,  except  those  in  which  the  sentence  of  death 
has  been  pronounced,  of  which  the  jurisdiction  of  the 
Supreme  Court  is  exclusive.  The  procedure  as  is 
above  pointed  out  is,  therefore,  applicable  to  both  the 
Supreme  Court  and  the  Court  of  Appeals  in  all  cases 
of  misdemeanors  and  felonies  non-capital. 

In  capital  cases  upon  affirmance  of  the  judgment 
of  the  trial  court,  the  Supreme  Court,  by  the  statute, 
fixes  the  time  for  the  execution  of  the  sentence, 
which,  under  the  present  law,  is  carried  out  at  the 
State  penitentiary,  in  the  manner  pointed  out  by 
the  statute,  and  the  copy  of  the  order  of  the  Su- 
preme Court  is  the  warrant  to  the  warden  for  the  exe- 
cution of  the  sentence. 

In  other  cases,  non-capital,  the  Supreme  Court  or 
Court  of  Appeals  is  required  to  remit  the  cause  to 
the  District  Court,  whose  judgment  it  has  reviewed, 
and  direct  that  court  to  carry  into  effect  the  judgment 
affirmed. 

The  application  for  a  rehearing  is  the  same  as  for 
making  the  application  and  the  mode  of  doing  so  in 
civil  cases. 

In  criminal  causes,  however,  heard  by  the  Court  of 
Appeals,  a  writ  of  error  lies  to  the  Supreme  Court, 
but  the  same  must  be  sued  out  within  sixty  days  after 


300  Practice  in  Courts  of  Review. 

the  final  judgment  of  the  Court  of  Appeals  is  rendered, 
as  provided  by  the  Court  of  Appeals  Act.  In  suing 
out  this  writ  of  error  the  course  pursued  in  suing  out 
the  writ  of  error  from  the  District  Court,  as  herein- 
before set  forth,  must  be  pursued.  All  the  provisions 
of  the  statute  regulating  the  procedure  on  writ  of 
error  in  criminal  cases  are  found  in  sections  1478  and 
1479  of  Mills'  Annotated  Statutes.  The  provisions  of 
the  Civil  Code,  section  78,  are  not  applicable  to  crimi- 
nal procedure. 


Appeals.  301 


CHAPTER    XI. 
Of  Appeals. 

Sec.  168.  Appeal  from  District  and  County  Courts. 

169.  Appeal  —  What  is  an. 

170.  An  appeal,  how  taken  —  Procedure 

171.  When  an  appeal  will  lie. 

172.  To  what  courts  an  appeal  lies. 

173.  Direct  appeal  to  Supreme  Court. 

174.  Decisions  as  to  franchise  and  freehold. 

175.  Joint  appeal,  when  maintainable. 

176.  The  appeal  bond,  form  of. 

177.  Appeals,  when  allowed  without  bond. 

178.  Appeal  bonds  amendable. 

179.  Appeal  to  be  docketed,  when  . 

180.  When  jurisdiction  of  court  attaches 

181.  Procedure  by  appellee. 

182.  Appeal,  when  dismissed. 

Appeals  from  District  and  County  Courts. 

Sec.  168.  Appeals  to  the  Court  of  Appeals  or  Su- 
preme Court  from  the  judgment  of  a  County  Court, 
or  of  a  District  Court,  lie  in  all  civil  cases,  where  the 
judgment  of  the  trial  court  is  a  final  judgment,  and 
for  an  amount  such  as  the  statute  specifies  as  neces- 
sary to  give  the  appellate  court  jurisdiction  of  the 
appeal. 

This  chapter  has  no  relation  to  and  does  not  treat 
of  appeals  taken  from  the  County  Court  to  the  Dis- 


302  Practice  in  Courts  of  Review. 

trict  Court  of  the  same  county  for  the  purpose  of  a 
trial  of  the  issues  of  fact  de  novo. 

By  the  act  of  1887  (Code,  §  388),  no  appeal 
could  be  taken  to  the  Supreme  Court,  unless  the 
amount  of  the  final  judgment  exceeded  one  hundred 
dollars,  but  this  limit  to  the  jurisdiction,  as  applied  to 
the  Court  of  Appeals,  seems  to  be  held  by  the  latter 
court  not  to  be  in  force  under  the  act  of  1891,  estab- 
lishino-  the  latter  court,  since  it  has  repeatedly  enter- 
tained jurisdiction  of  cases  wherein  the  amount  for 
which  the  judgment  given  by  the  trial  court  was 
considerably  less  than  one  hundred  dollars. 

But  to  take  an  appeal  to  the  Supreme  Court  from 
a  final  judgment  of  a  trial  court  or  of  the  Court  of 
Appeals,  it  is  now  necessary  that  the  amount  for 
which  the  judgment  is  rendered  by  the  trial  court,  or 
by  the  Court  of  Appeals,  shall  exceed  two  thousand 
five  hundred  dollars,  or  that  the  matter  in  con- 
troversy shall  relate  to  a  franchise  or  to  a  freehold, 
or  that  to  a  proper  and  correct  decision  of  the  case  it 
shall  be  necessary  for  the  court  to  give  a  construc- 
tion to  some  provision  of  the  Constitution  of  the 
United  States  or  of  the  State  of  Colorado.  As  to 
these  matters  see  ante,  Final  Judgment,"  etc., 
pp.  58-66. 

Appeal  —  What  is  an. 

Sec.  169.  An  appeal  is  a  proceeding,  by  which  a  civil 
cause,  either  legal  or  equitable  in  its  nature,  which  has 


What  is  an  Appeal.  303 

progressed  to  a  final  judgment  or  decree  in  a  nisiprms 
court  against  one  of  the  parties  litigant,  is  removed 
to  the  court  of  review  for  the  purpose  of  having 
the  judgment  or  decree  of  the  trial  court  and  its  rul- 
ing and  decisions  during  the  progress  of  the  trial,  re- 
viewed by  the  appellate  court  on  the  transcript  of 
the  record  and  proceedings  of  such  nisi prius  court. 

The  appeal  here  under  consideration  differs  es- 
sentially from  the  appeal,  allowed  by  the  statute, 
from  the  County  Court  to  the  District  Court  of  the 
same  county,  in  this,  that  the  latter  appeal,  when  duly 
perfected,  vacates  the  judgment  of  the  County  Court 
in  that  action,  and  the  cause  is  again  triable  in  the  Dis- 
trict Court,  in  the  same  manner  as  if  no  trial  what- 
ever had  been  had  in  the  County  Court.  On  the  trial 
on  such  appeal,  the  witnesses  are  again  produced  in 
court,  sworn  and  examined  by  each  party  to  the  litiga- 
tion, in  the  same  manner  as  if  the  case  had  been  com- 
menced in  the  first  instance  in  the  District  Court,  and 
all  proceedings  are  conducted  in  the  same  manner  as 
if  it  were  an  original  case  in  the  District  Court,  except 
that  the  jurisdiction  of  the  District  Court,  in  that  case, 
is  limited  to  the  sum  of  two  thousand  dollars,  the 
jurisdictional  limit  of  the  County  Court. 

On  such  appeal  the  District  Court  does  not  sit  as  a 
court  of  review  of  the  record  and  proceedings  had 
in  the  County  Court. 

But  the  appeal  from  a  7tisi prius  court  to  a  court  of 
review  is  wholly  different.      In  such  appeal  the  judg- 


304  Practice  in  Courts  of  Review. 

ment  of  the  trial  court  is  merely  suspended  in  its 
execution  in  the  same  manner  as  when  a  supersedeas  is 
allowed  on  proceedings  in  error.  The  record  of  the 
trial  court  is  removed  by  a  certified  transcript  thereof 
to  the  court  of  review,  and  is  there  examined,  and 
the  proceedings  therein  set  forth  reviewed  by  the 
appellate  court,  without  any  other  or  further  hearing 
of  evidence.  The  record  as  transmitted,  including 
the  bill  of  exceptions,  is  all  that  is  properly  before 
the  court  for  review,  and  it  has  no  power  to  go  out- 
side of  such  record  for  testimony  or  other  matters  to 
govern  it  on  the  appeal. 

Except  in  the  mode  of  removing  a  cause  to  an  ap- 
pellate court,  and  the  proceedings  attendant  on  such 
removal,  there  is  in  the  Colorado  practice  but  little, 
if  any,  difference  between  the  proceeding  on  error  and 
on  appeal. 

An  appeal,  as  constituted  by  the  statute  of  Colo- 
rado, was  unknown  to  the  common-law  practice,  and 
is  wholly  a  creature  of  the  statute,  by  which  it  is 
given.  The  court  and  parties  to  the  litigation  in  the 
trial  court  must  look  to  the  statute  alone  and  be  gov- 
erned wholly  by  it  in  ascertaining  if  the  right  to  ap- 
peal from  the  judgment  exist  in  favor  of  the  party, 
who  desires  to  appeal,  and  in  the  mode  of  obtaining 
such  appeal.^ 

'  Luthe  V.  Luthe,  12  Colo.  429;  Cleland  v.  Tanner,  8  Colo.  252. 


Appeal  — How  Taken.  305 

An  Appeal — How  Taken — Procedure. 

Sec.  170.  As  an  appeal  lies  only  in  civil  cases,  the 
Civil  Code  provisions  must  be  looked  to  for  the  law 
governing  the  right  and  mode  of  taking  an  appeal  from 
the  judgment  of  the  trial  court  to  a  court  of  review. 
The  Code  prescribes  : 

First.  That  the  party  who  desires  to  take  an  ap- 
peal, pray  the  trial  court  to  allow  the  appeal  within 
five  days  after  the  rendition  of  the  judgment  from 
which  the  appeal  is  sought. 

Second.  That  the  appellant  give  a  good  bond  in  a 
sum  sufficient  to  cover  the  amount  of  the  judgment 
appealed  from,  conditioned  as  prescribed  by  the  Code. 
Upon  a  compliance  with  these  conditions  the  appel- 
lant is  entitled  to  take  his  appeal  as  a  matter  of  right. 
It  seems  that  the  trial  judge  in  allowing  the  appeal 
has  no  discretion  to  refuse  to  allow  an  appeal,  if  the 
cause  be  appealable,  and  the  party  be  ready  and  will- 
ing to  give  the  required  bond.  His  discretion  is  ex- 
ercisable only  on  the  question  of  the  amount  of  the 
bond  to  be  given  ;  the  time  within  which  such  bond 
shall  be  filed  and  approved,  and  the  sufficiency  of 
the  sureties  thereon.  If,  however,  the  cause  be  not 
appealable  for  any  cause,  or  the  application  for  the 
allowance  of  the  appeal  be  not  made  within  the  time 
prescribed  by  the  statute,  the  trial  court  may  prop- 
erly refuse  to  allow  the  appeal.  It  seems  also  that 
no  provision  whatever  is  made  by  the  statute  for 
3Q 


3o6  Practice  in  Courts  of  Review. 

allowing  an  appeal  after  the  expiration  of  the  time 
prescribed.  In  all  such  cases  the  party  is  remitted 
to  his  writ  of  error. 

The  course  of  procedure  to  take  an  appeal  from  a 
trial  court  to  one  of  the  courts  of  review  is:  First.  To 
make  an  application  to  the  court  by  which  the  judg- 
ment is  rendered,  for  such  appeal,  within  five  days 
from  the  day  on  which  the  judgment  is  announced 
by  the  judge  in  open  court. 

The  prayer  or  request  for  allowance  of  the  appeal 
must  be  made  to  the  court,  by  which  the  judgment 
is  rendered.  Thus,  while  in  Arapahoe  county  there 
are  five  district  judges,  sitting  for  the  trial  of  causes, 
civil  and  criminal  in  separate  divisions,  each  judge 
sits  as  a  separate  and  distinct  court,  as  fully  as  if  he 
were  the  sole  district  judge  of  Arapahoe  county,  and 
when  a  judgment  is  rendered  by  him,  whether  it  be 
on  the  verdict  of  a  jury,  or  on  a  trial  by  the  court, 
the  application  for  an  allowance  of  an  appeal  there- 
from must  be  made  to  him,  and  cannot  be  made  to 
one  of  the  other  judges.  So  when  the  trial  is  had 
before  the  judge  of  another  judicial  district,  sitting  for 
the  judge  of  the  district,  the  application  for  allowance 
of  the  appeal  must  be  made  to  the  judge  who  tried 
the  cause,  and  not  to  the  judge  of  the  district. 

Second.  The  application  must  be  made  within  five 
days  from  the  rendition  of  the  judgment. 

Under  section  224  of  the  Code,  the  clerk  of  the 
trial  court  is  required  to  enter  judgment,  when  the 


Prayer  for  Appeal.  307 

trial  is  had  by  a  jury,  within  twenty-four  hours  after 
the  rendition  of  the  verdict,  unless  the  court  order 
the  case  reserved  for  argument  or  further  considera- 
tion, or  grant  a  stay  of  proceedings.  But  the  entry 
of  judgment  does  not  prejudice  the  right  to  move  for 
a  new  trial  in  due  time. 

Under  the  ordinary  common-law  practice  a  motion 
for  a  new  trial  will  stay  the  entry  of  the  judgment, 
but  this  is  not  so  by  the  Code  of  Procedure,  unless  a 
special  order  of  the  court  is  obtained  staying  the 
entry  of  the  judgment. 

In  all  cases,  whether  of  trial  by  jury  or  by  the 
court,  if  the  court  render  judgment  in  the  action,  the 
appeal  must  be  prayed  within  Jive  days  from  the  day 
on  which  such  judgment  is  announced,  since  a  judg- 
ment is  a  judicial  act,  what  is  considered  and  ordered 
by  the  court,  and  it  is  effective  from  the  day  of  its 
announcement,  though  the  clerk  may  not  enter  it  of 
record  for  some  time  thereafter.  In  the  computation 
of  the  jive  days,  the  day  on  which  the  judgment  is 
announced  is  not  counted  under  section  382  of  the 
Code.i 

Prior  to  the  amendment  to  the  Code  of  1889,  the 
prayer  for  an  appeal  could  only  be  made  while  the 
court  was  sitting  judicially,  for  the  transaction  of 
business.  If  the  court  had  adjourned  for  the  term, 
though   the  judgment,  from   which  the   appeal   was 


'  Gruner  V.   Moore,  6  Colo.    526;  Sieber  v.   Frink,   7    Colo.    151; 
Gaynor  et  al.  v.  Clements,  16  Colo.  213. 


3o8  Practice  in  Courts  of  Review, 

sought,  had  been  rendered  during  the  last  hour  of 
the  term,  unless  the  appeal  was  then  prayed  and 
allowed,  the  right  of  appeal  was  lost.  To  remedy 
this  defect  in  the  law,  the  Code  amendment  of  1889 
provides  that  the  prayer  for  an  appeal  may  be  made 
to  and  the  order  therefor  be  made  by  the  judge  in 
vacation,  in  all  cases  where  the  court  is  not  sitting 
judicially  during  the  whole  of  the  five  days  allowed 
for  praying  the  appeal.  To  avail  of  this  amendment, 
the  court  must  have  adjourned  for  the  term,  before 
the  expiration  of  the  five  days  after  the  rendition 
of  the  judgment.  An  application  for  the  allowance 
of  the  appeal  cannot  be  made  at  chambers,  during 
the  term,  nor  can  the  judge  allow  an  appeal  at 
chambers,  before  the  court  has  adjourned  for  the 
term.  The  conditions  necessary  to  an  allowance  of 
an  appeal  at  chambers  are  :  First.  That  the  five  days 
since  the  rendition  of  the  judgment  have  not  expired 
when  the  prayer  for  appeal  is  made.  Second.  That 
the  court  in  which  the  judgment  was  rendered,  has 
adjourned  for  the  term. 

If  the  court  be  in  session,  or  the  court  have  not 
adjourned  for  the  term,  though  it  may  have  ad- 
journed for  a  few  days  only,  the  appeal  can  be 
allowed  only  by  the  court,  as  prior  to  the  amendment 
of  1S89. 

At  the  time  of  allowing  the  appeal,  the  court,  or 
judge,  if  it  be  allowed  at  chambers,  usually  pre- 
scribes the  time  within  which  the  appeal  bond  is  to 


Appeal  at  Chambers.  309 

be  filed  and  approved,  and  the  bill  of  exceptions 
signed  and  filed. 

Second.  After  the  allowance  of  the  appeal  by  the 
court  or  judge,  the  appellant  must,  within  the  time 
fixed  in  the  order  allowing  the  appeal,  prepare  his 
appeal  bond  or  undertaking,  which  must  be  in  the 
penal  sum  prescribed  by  the  court  or  judge,  and  con- 
ditioned as  required  by  law,  and  present  himself  to  the 
clerk  or  other  person  designated  by  the  court  in  the 
order  as  the  person,  who  shall  approve  the  bond,  for 
examination  as  to  the  suiihciency  thereof.  The  clerk 
is  required  by  the  Code  to  satisfy  himself  of  the  suf- 
ficiency of  the  sureties,  and  usually  requires  them  to 
make  the  afifidavit  prescribed  by  section  421  of  the 
Code  as  to  their  suf^ciency.  The  bond  must  run  to 
the  adverse  party  in  the  action.  If  the  clerk  approve 
the  bond,  he  indorses  his  approval  of  it  thereon  and 
files  it  with  the  other  papers  in  the  action.  By  such 
approval  the  cause  is  transferred  to  the  court  of  re- 
view, proceedings  in  the  trial  court  in  execution  of 
the  judgment  are  stayed,  and  the  latter  court  is 
divested  of  its  jurisdiction  for  all  purposes  in  that 
action,  except  that  of  correcting  errors  in  the  record.^ 

The  appeal  bond  is  said  by  the  Supreme  Court 
of  Illinois  to  be  in  the  nature  of  process,  by  which 
the  cause  is  transferred  from  the  trial  court  to  the 
court  of  review.  By  the  due  execution  and  approval 
of  the  appeal  bond,  where  the  cause  is  appealable, 

'  Hurd  V.  People,  14  Colo.  210;  Eicholz  v.  Wilbur,  4  Colo.  435. 


jio  Practice  in  Courts  of  Review. 

the  court  of  review  acquires  jurisdiction  of  the  ap- 
peal, and  of  the  parties  who  take  the  appeal.  From 
the  filing  of  the  appeal  bond  in  the  trial  court  to  the 
final  decision  of  the  court  of  review,  all  matters, 
other  than  such  proceedings  as  are  necessary  to  cor- 
rect the  record  of  the  trial  court,  must  be  brought 
before  the  court  of  review.  The  filing  of  the  ap- 
proved appeal  bond  is  notice  to  the  trial  court  that 
it  is  divested  of  all  jurisdiction  in  the  cause,  and  that 
the  court  of  review  alone  has  jurisdiction. 

When  an  Appeal  will  Lie. 

Sec.  1 71.  The  Code  provides  that  an  appeal  lies 
only,  when  the  judgment  sought  to  be  appealed  is  a 
"final  judgment."  See  "Final  Judgment,"  §  61, 
ante. 

Hence,  a  judgment  to  be  appealable  must  deter- 
mine the  substantial  matter  which  is  in  controversy 
in  the  action,  must  adjudicate  the  merits  of  the 
party's  case  and  dispose  of  his  claims  as  set  forth  by 
his  pleadings  in  the  action.  It  must  put  an  end  to 
all  controversy  on  the  merits  as  between  the  parties 
litieant,  though  there  be  some  matter,  incidental  or 
dependent,  which  the  court  reserves  for  supplemental 
decree.  Such  a  reservation,  if  not  of  matters  affect- 
ing the  merits,  will  not  prevent  the  judgment  from 
being  a  final  judgment.  Hence  an  appeal  does  not 
lie  from  any  interlocutory  order  entered  during  the 
progress  of  the  cause,  or  from  any  order,  ruling  or 


Appeal.  311 

decision  which  the  court  makes  in  the  cause  prior 
to  the  final  judgrnent.  All  such  orders,  rulings  and 
decisions  are  reviewable  only  on  appeal  from  the 
final  judgment. 

An  appeal  does  not  lie  in  a  criminal  case,  or  on  a 
final  judgment  in  a  contempt  case,  or  from  a  judo-- 
ment  of  ouster  in  a  case  relating  to  a  public  ofifice, 
in  a  proceeding  by  quo  warranto} 

So  an  appeal  does  not  lie  by  the  plaintiff,  on  a 
judgment  in  his  favor,  even  though  he  be  aggrieved 
thereby.  His  sole  remedy  in  such  case  is  by  a  pro- 
ceeding in  error.^ 

So  an  appeal  will  not  lie  from  an  order  made  after 
the  rendition  of  the  final  judgment,  unless  such  order 
be  made  within  five  days,  since  an  appeal  from  such 
judgment  is  required  to  be  made,  or  at  least  allowed, 
within  five  days  after  such  judgment.  If  it  is  sought 
to  review  such  an  order,  it  must  be  by  writ  of  error 
only. 

Since  the  establishment  of  the  Court  of  Appeals, 
and  the  provision  that  an  appeal  or  writ  of  error 
from  the  Supreme  Court  lies  in  a  certain  class  of 
causes,  the  question  arises  whether  a  judgment  of 
the  Court  of  Appeals,  which  reverses  and  remands  a 
cause  to  the  trial  court,  is  such  a  final  judgment  as 
will   authorize  an  appeal  therefrom  to  or  a  writ  of 

'Teller  v.   People,  7  Colo.  451  ;   Londoner  v.  People,  ex  rel.,  15 
Colo.  246, 

'^  Hall  V.  Mining  Co.,  6  Colo.  81  ;  Vallette  v.  Mining  Co.,  11  Colo. 

204. 


312  Practice  in  Courts  of  Review. 

error  from  the  Supreme  Court.  The  question  has 
not  yet  been  passed  upon  by  the  Supreme  Court  of 
Colorado.  But  it  seems  from  the  current  of  authori- 
ties that  such  a  judgment  is  not  ordinarily  a  "final" 
judgment  from  which  an  appeal  will  lie.^  The  judg- 
ment of  the  Court  of  Appeals  must,  however,  be 
considered.  If  it  be  a  judgment  reversing  the  judg- 
ment of  the  trial  court  and  remanding  the  cause  for 
further  proceedings  in  conformity  with  the  opinion 
of  the  appellate  court,  it  would  seem  that  such  a 
judgment  is  not  final  and,  therefore,  not  appealable. 
The  object  for  which  the  action  is  remanded  to  the 
trial  court  is  to  give  to  that  court  an  opportunity  to 
correct  the  errors  complained  of  on  another  trial. 
While  the  opinion  rendered  may  be  final,  as  to  the 
views  of  the  appellate  court,  the  judgment  merely 
sends  the  case  back  to  the  trial  court  for  another 
trial,  and  the  judgment  of  the  appellate  court  bears 
a  close  analogy  to  the  decision  of  the  trial  court, 
when  it  grants  a  new  trial  under  the  Code.  But  if 
the  judgment  of  the  Court  of  Appeals  disposes  of  the 
cause  on  its  merits,  and  merely  remands  the  cause  to 
the  trial  court,  that  the  latter  may  perform  a  duty  im- 
posed upon  it  by  the  judgment,  such  as  entering  a 
correct  judgment,  or  dismissing  the  cause  for  want  of 
merits,  and  no  discretion  is  allowed  the  trial  court  as 
to  its  action,  after  such  remand,  it  seems  that  such  a 


'Jones   V.   Fortune,    128  111.   520;    Virginia  v.   Brewing  Co.,  136 
111.  617. 


Appeals  —  Amount.  313 

judgment  of  the  Court  of  Appeals  would  be  a  "  final  '^ 
judgment,  from  which  an  appeal  may  be  taken  in 
proper  cases  to  the  Supreme  Court. 

An  appeal  to  the  Supreme  Court  from  a  final  judg- 
ment of  the  Court  of  Appeals  lies  only  in  such  cases 
as  might  have  been  taken  originally  to  the  Supreme 
Court  from  the  trial  court,  under  the  first  section  of 
the  act  of  1891  in  relation  to  courts  of  review.  The 
statute  prescribes  no  particular  mode  of  procedure 
for  taking  such  appeal,  and  merely  fixes  the  time 
within  which  such  appeal  shall  be  taken,  that  is,  sixty 
days  from  the  rendition  of  judgment  of  the  Court  of 
Appeals.  All  other  matters,  such  as  the  amount  of 
bond,  and  by  whom  approved,  when  to  be  filed,  etc., 
are  left  to  be  regulated  by  the  court. 

To  WHAT  Courts  an  Appeal  Lies  from  the  Judg- 
ment OF  THE  Trial  Court. 

Sec.  172.  Under  the  statute  of  1891  a  party  desir- 
ing to  appeal  from  the  judgment  of  the  trial  court 
has,  in  many  cases,  an  election  of  two  courts  to  which 
he  may  take  an  appeal.  From  judgments  of  the 
County  Court  he  can  appeal  to  the  Court  of  Appeals 
only,  though  if  he  desire  to  go  directly  to  the  Su- 
preme Court  from  the  County  Court,  he  can  do 
so  by  writ  of  error,  under  a  provision  of  the  Con- 
stitution. 

As  the  constitutional  limitation  of  the  jurisdiction 

•of  the  County  Court   in  civil  cases  is  two  thousand 

40 


314  Practice  in  Courts  of  Review. 

dollars,  the  judgment  of  the  Court  of  Appeals  on  an 
appeal  from  the  County  Court  is  final  under  the  act 
of  1 89 1.  But  as  the  Court  of  Appeals  does  not 
regard  the  one  hundred  dollar  limitation  of  the  Code 
on  the  jurisdiction  of  the  Supreme  Court,  prior  to 
the  act  of  1 891,  as  applying  to  it,  he  may  take  an 
appeal  to  the  Court  of  Appeals  for  any  sum  whatever 
within  the  jurisdiction  of  the  County  Court.  But 
appeals  from  judgments  of  District  Courts  are  divided 
into  two  classes.  One  class  is  composed  of  causes 
wherein  the  money  limit  of  the  judgment  is  twenty- 
five  hundred  dollars  or  less.  In  this  class  of  causes 
all  appeals  go  to  the  Court  of  Appeals  exclusively, 
and  are  not  removable  to  the  Supreme  Court  from 
either  the  trial  court  or  the  Court  of  Appeals. 

The  second  class  of  causes  are  those  wherein  the 
money  judgment  exceeds  twenty-five  hundred  dollars, 
causes  involving  a  franchise  or  freehold,  or  requiring 
of  the  court  a  construction  of  some  provision  of  the 
Constitution  of  the  State  or  of  the  United  States, 
and  criminal  causes.  Any  such  case  may  be  taken 
either  to  the  Court  of  Appeals  or  to  the  Supreme 
Court  directly.  So  in  this  class  of  causes  an  appeal 
lies  from  the  judgment  of  the  Court  of  Appeals  in 
civil  cases,  and  a  writ  of  error  in  both  civil  and 
criminal  cases  from  the  Supreme  Court.  In  this 
latter  class  of  causes  the  appellant  has  the  privilege, 
of  which  he  may  avail  himself  if  he  desires  to  do  so, 
of  having  his  case  reviewed  by  both  courts  of  review. 


Franchise.  315 

If  his  allegations  of  error  are  not  sustained  by  the 
Court  of  Appeals,  he  may  be  more  successful  in  the 
Supreme  Court. . 

Direct  Appeal  to  Supreme  Court, 

Sec.  173.  Besides  the  money  amount  of  exceeding 
twenty-five  hundred  dollars,  for  which  the  judgment 
was  rendered,  the  statute  of  1891  allows  an  appeal 
directly  to  the  Supreme  Court,  when  the  action  in 
the  trial  court  involves  a  "  franchise  or  a  freehold." 

A  franchise  is  defined  to  be  "a  particular  privilege 
conferred  upon  individuals  by  the  government,"  and 
is  usually  conferred  upon  corporations  for  the  pur- 
pose of  enabling  them  to  carry  out  the  objects  of 
their  incorporation.  The  franchise  is  vested  in  the 
corporation  as  a  distinct  entity,  as  distinguished  from 
the  officers  of  such  corporation.  Public  offices  are 
held  not  to  be  included  in  the  term  "franchise." 

A  freehold  involves  the  title  in  fee  to  the  parcel  of 
land. 

To  authorize  an  appeal,  either  from  the  trial  court 
or  from  the  Court  of  Appeals  to  the  Supreme  Court, 
on  the  ground  that  the  controversy  involves  a  fran- 
chise or  a  freehold,  the  Supreme  Court,  following  the 
decisions  of  the  Supreme  Court  of  Illinois,  holds  that 
the  franchise  or  the  right  of  freehold  must  be  directly, 
not  incidentally  or  collaterally,  the  subject  of  the 
action.^     So  it  will  be  held  that  no  appeal  lies  to  the 

'  Londoner  v.  People,  15  Colo.  247;  Brandenburg  v.  Reithman,  7 
Colo.  324;  Malaer  v.  Hudgens,  130  111.  229. 


3i6  Practice  in  Courts  of  Review. 

Supreme  Court  on  the  ground  that  the  case  involves 
a  construction  of  a  provision  of  the  Constitution  of  the 
State  or  of  the  United  States,  unless  a  construction 
of  a  provision  thereof  is  indispensable  to  a  correct 
adjudication  of  the  principal  question  involved  in  the 
action. 

Decisions  as  to  Franchise  and  Freehold. 

Sec.  1 74.  The  word  "  franchise"  as  used  in  the  statute 
of  appeals  to  the  Supreme  Court,  means  a  privilege 
emanating  from  the  sovereign  power  of  the  State, 
owing  its  existence  to  a  grant  or  to  prescription,  and 
investing  in  individuals  or  the  body  politic  something 
not  belonging  to  the  citizen  of  common  right.  The 
right  to  be  a  corporation  by  a  particular  name  is  a 
franchise. 

An  information  in  the  nature  of  a  quo  warra7ito 
against  persons  claiming  to  act  as  drainage  commis- 
sioners, on  the  ground  that  such  district  has  not  been 
legally  organized,  involves  a  franchise.^ 

A  bill  for  dower,  under  the  Illinois  statutes,  in- 
volves a  freehold.  So  a  proceeding  to  maintain  a 
permanent  easement  to  the  half  of  an  adjacent  lot, 
and  to  keep  the  same  free  from  buildings,  which  will 
bar  light,  and  expose  the  buildings  on  adjacent  lot 
to  dangler  of  fire,  involves  a  freehold. 


1  Hazel  B.  Co.  v.  Hazel  T.  B.  Co.,  137  111.  233;  People  v.  O'Hair, 
128  111.  22. 


Freehold  317 

A  freehold  is  involved  whenever  the  necessary 
result  of  the  judgment  is  that  one  party  to  the  litiga- 
tion gains  and  the  other  party  loses  a  freehold  estate. 
So  when  the  pleadings  so  put  the  title  in  issue  that 
a  decision  of  the  case  necessarily  requires  a  decision 
of  this  issue,  although  one  party  does  not  lose  and  the 
other  gain  a  freehold  estate  by  the  final  judgment. 
So  where  the  court  on  the  evidence  determines  that 
one  party  holds  the  title,  and  by  the  final  decree  sets 
aside  the  deeds,  under  which  the  adverse  party  claims 
title,  a  freehold  is  involved.  So  a  freehold  is  in- 
volved in  a  complaint  to  impeach  a  decree  rendered 
in  a  proceeding  in  partition.  So  a  freehold  is  in- 
volved in  a  condemnation  proceeding  under  the 
Eminent  Domain  Act,  where  one  party  owns  the 
title  in  fee  to  the  land  sought  to  be  taken.^ 

Where  a  franchise  or  freehold  is  involved  the  cause 
may  be  taken  to  the  Supreme  Court  directly  by  ap- 
peal or  writ  of  error  without  regard  to  the  amount 
involved  in  the  suit;"  but  unlike  the  appellate  courts 
of  Illinois,  which  have  no  jurisdiction  in  such  cases, 
the  Court  of  Appeals  of  Colorado  has  concurrent 
jurisdiction  A^ith  the  Supreme  Court,  and  may  deter- 
mine such  a  case,  subject  to  an  appeal  to  the  Supreme 
Court  from  its  judgment. 

'  Sanford  v.  Kane,  127  111.  391;  Ryan  v.  Sanford,  133  III.  296: 
Goodkind  v.  Bartlett,  136  111.  19;  Nichols  v.  Otto,  132  111.  96; 
Walker  V.  Doane,  131  III.  41 ;  Tinker  v.  Forbes,  136  111.  234;  Stunz 
V.  Stunz,  131  111.  321. 

'■*  Santord  v.  Kane,  127  111.  594. 


3i8  Practice  in  Courts  of  Review 

Joint  Appeal — When  Maintainable. 

Sec.  175.  Under  the  act  of  1889,  a  joint  appeal  to 
the  appellate  court  will  not  lie  in  any  case,  unless 
as  to  each  appellant  the  trial  court  has  rendered  a 
final  judgment,  in  amount  sufficient  to  entitle  each 
to  an  appeal  therefrom.  The  provision  of  the  Code, 
by  which  one  of  several  defendants  is  authorized  to 
appeal  to  the  court  of  review,  and  to  use  the  names 
of  his  co-defendants,  if  necessary,  does  not  affect  this 
rule.  In  praying  an  appeal  the  defendants  should 
pray  a  joint  and  several  appeal  and  have  the  order 
show  that  the  appeal  is  joint  and  several,  or  one  of 
the  defendants  alone  cannot  prosecute  such  appeal. 
A  joint  appeal  must  be  prosecuted  by  all  the  defend- 
ants, who  join  in  the  execution  of  the  appeal  bond.* 

The  Appeal  Bond — Form  of. 

Sec.  176.  On  praying  an  appeal,  the  party  appeal- 
ing is  required  to  execute  a  good  and  sufficient  ap- 
peal bond  or  undertaking,  in  an  amount  specified  by 
the  court  in  the  order,  which  bond  runs  to  the  ad- 
verse party  in  the  action,  and  must  be  approved  and 
filed  in  the  trial  court  within  a  specified  time. 

The  bond  is  in  the  following  form  : 

Kncnv  all  men  by  these  presents,  tJiat  7i.'t' and ,  all  of  the 

county  of and  State  of  Colorado,   are  held  and  fir  inly  bound 

unto in  the  penal  sum  of  dollars,  lawfiu  money  of  the 

*  Diamond,  etc.,  Co.  v.  Faulkner,  14  Colo.  438. 


Appeal  Bond.  319 

United  States  of  America,  for  the  payment  of  which  well  and  truly 
to  be  made,  we  bind  ourselves,  our  heirs,  executors  and  administra- 
tors, jointly  and  severally,  firmly  by  these  presents  : 

Sealed  with  our  seals  at ,  this day  of  ,  A.  D.  18 — . 

The  condition  of  the  above  obligation  is  such  that : 

Whereas,    The  above-named did  at  a  term  of  the Court, 

then  being  holden  in  and  for  the  county  of ,  ///  the  State  of  Colo- 
rado, on  the day  of ,  1 8 — ,  recover  a  judgment  against  the 

above-bounden for  the  sum  of dollars  and  the  costs  of  suit, 

from  which  Judgment  the  said has  prayed  and  been  allowed  an 

appeal  to  the  (here  designate  the  appellate  court)  of  said  State, 

Now,  if  said shall  duly  prosecute  said  appeal  with  effect,  and 

shall  pay  the  amount  of  said  judgment,  costs,  interest,  a?td  damages, 

rendered  and  to  be  rendered  against  him,  in  case  said  judgment  shall 

be  affirmed  by  the  said  court,  then  the  above  obligation  to  be  void, 

otherwise  to  remain  in  full  force  and  effect. 

.  [seal.] 

.  (seal. j 

The  approval  of  the  bond  is  indorsed  on  said  bond 
as  follows: 

Approved  by  ?ne  this day  of ,  A.  D.  i8 — . 


Clerk. 

The  indorsement  of  approval  should  be  made  be- 
fore the  bond  is  filed  in  the  clerk's  office,  though  it 
has  been  held  that  if  the  clerk  retain  the  bond  with- 
out indorsing  a  formal  approval  thereon,  and  trans- 
mit a  copy  thereof  with  the  transcript  to  the  court  of 
review,  the  absence  of  the  formal  approval  indorsed 
on  the  bond  will  not  be  fatal  to  the  appeal,  since  the 
indorsement   is  only  evidence  of  the  approval,   and 


320  Practice  in  Courts  of  Review. 

the  act  of  the  clerk  in  retaining  the  bond  and  trans- 
mitting it  to  the  appellate  court  is  the  equivalent  of 
the  formal  indorsement. 

By  filing  the  approved  appeal  bond  in  the  trial 
court  the  appeal  is  "made,"  and  thereafter  all  pro- 
ceedings are  to  be  had  in  the  court  of  review. 

Appeals  —  When  Allowed  Without  Bond. 

Sec.  177.  The  Code,  section  395,  authorizes  the 
trial  court  to  dispense  with  security  on  appeal,  when 
the  appellant  is  an  executor,  administrator,  trustee 
or  other  person  acting  in  another's  right.  But  this 
should  be  done  by  a  formal  order  entered  of  record 
showing  that  the  appeal  is  allowed,  without  the 
appellant  being  required  to  give  security,  for  the 
reason  that  such  appeal  is  on  behalf  of  the  estate  for 
which  appellant  is  executor,  etc. 

In  cases  where  a  municipal  corporation,  such  as  a 
city  or  town,  in  its  corporate  capacity,  desires  to 
appeal  from  a  judgment  rendered  against  it  in  a  court 
of  record,  it  is  authorized  to  do  so  by  the  Code  with- 
out giving  a  bond.  It  would  seem  also  that  it  may 
appeal  from  a  judgment  in  its  favor,  as  well  as  a  judg- 
ment against  it,  since  not  being  required  to  give  any 
bond,  the  reason  of  the  decision  that  a  plaintiff  can- 
not appeal  from  a  judgment  in  his  own  favor  does 
not  exist  in  such  case. 


Bond  by  Attorney  in  Fact,  321 

Appeal  Bonds  to  Court  of  Review    Amendable. 

Sec.  178.  By  section  388  of  the  Code  the  court  of 
review  is  authorized  to  allow  defective  appeal  bonds 
to  be  amended.  If,  therefore,  the  bond  approved  by 
the  clerk  be  found,  after  its  transmittal  to  the  court 
of  review,  to  be  defective  in  any  particular,  the  defect 
may  be  cured  by  permission  of  the  court  of  review. 
The  objection  to  the  sufficiency  of  the  bond  filed  is 
made  by  a  motion  on  the  part  of  the  appellee  to  dis- 
miss the  appeal,  on  the  ground  that  the  appeal  bond 
is  defective  or  insufficient.  This  motion  must  be 
supported  by  affidavits  showing  that  the  sureties  on 
the  bond  are  not  sufficiently  responsible  for  the 
amount  mentioned  in  the  bond.  The  appellant  will 
then  meet  such  affidavits  by  counter  affidavits  of  the 
sureties,  which  should  specifically  state  the  nature 
and  character  of  their  property,  its  nature,  location, 
cash  value,  incumbrances  and  every  thing  in  relation 
thereto  that  will  enable  the  court  to  judge  advisedly 
of  their  sufficiency  as  sureties.  If  the  court  find  them 
to  be  insufficient,  it  will  then  be  in  order  for  the 
appellant  to  ask  leave  to  file  a  new  and  sufficient 
bond.  Whether  the  court  has  power  to  allow  a  ^lew 
appeal  bond  to  be  filed  is  doubtful,  since  the  statute 
applies  only  to  defective  appeal  bonds  and  their 
amendment ;  but  if  the  court  allow  such  an  appeal 
bond  to  be  filed,  the  appellant  is  estopped  from  call- 
ing such  order  in  question  in  an  action  on  such  bond, 
41 


322  Practice  in  Courts  of  Review. 

as  he  has  the  benefit  of  the  appeal  in  consequence  ot 
the  order  of  the  court. 

If  the  new  bond  is  executed  by  an  attorney  in  fact, 
the  rules  of  the  court  require  that  the  power  of 
attorney  originally  given  be  filed  with  the  bond  in 
the  ofiice  of  the  clerk  of  the  court  of  review,  unless 
such  power  of  attorney  contain  other  powers  besides 
the  power  to  execute  the  bond  in  question.  In  such 
case  the  rule  requires  the  original  power  of  attorney 
to  be  exhibited  to  the  clerk,  and  a  copy  thereof  certi- 
fied by  the  clerk  to  be  a  true  copy,  to  be  filed  in  his 
office.^ 

This  rule  applies  only  to  bonds  filed  originally  in 
the  court  of  review,  and  not  to  bonds  filed  in  the 
trial  court. 

Appeal  to  be    Docketed  —  When. 

Sec.  1 79.  After  the  appeal  has  been  taken  by  filing 
the  approved  bond  in  the  trial  court,  the  appellant 
will  next  procure  from  the  clerk  of  the  trial  court  a 
transcript  of  the  record  of  the  cause,  as  hereinbefore 
stated  in  case  of  a  writ  of  error,  and  attach  thereto  an 
assignment  of  errors.  "  See  Record  and  Assignment 
of  Errors,"  ante,  §§  89-1 14.  The  transcript  is  to  be 
procured  by  the  appellant,  as  in  case  of  a  writ  of  error. 
The  appeal  being  a  continuation  of  the  original 
action,  and  the  appeal  bond  being  the  process  by 
which  the  transfer  to  the  court  of  review  is  effected. 


'  Rule  7  of  Supreme  Court. 


Docketing  Appeal.  323 

the  duty  of  seeing  that  every  step  is  properly  and 
timely  taken  devolves  on  the  appellant. 

He  must  lodge  the  transcript  of  the  cause  in  the 
office  of  the  clerk  of  the  court  of  review  within  the 
time  specified  by  the  statute,  or  his  appeal  may  be 
dismissed  for  want  of  prosecution.  The  Code  re- 
quires that  an  'authenticated  copy  of  the  record 
appealed  from  be  lodged  in  the  office  of  the  clerk  of 
the  court  of  review  on  or  before  the  third  day  of  the 
next  term  of  the  appellate  court.  Provided,  that,  if 
there  be  not  thirty  days  between  the  time  of  making 
the  appeal  and  the  next  term  of  the  appellate  court, 
the  transcript  of  the  record  must  be  lodged  with  the 
clerk  on  or  before  the  third  day  of  the  next  succeed- 
ing term  of  the  appellate  court,  unless  further  time 
shall  be  granted  by  the  appellate  court  for  good 
cause  shown. 

The  time  of  "  making  the  appeal  "  is  construed  to 
be  the  time  given  by  the  trial  court  for  preparing 
and  filing  the  appeal  bond  in  that  court.  Thus,  if 
the  order  allowing  the  appeal  be  made  on  the  fifth 
day  of  May,  and  gives  twenty  days  within  which  to 
"  make  the  appeal,"  the  appellant  may  file  his  bond 
on  the  twenty-sixth  day  of  May.  The  appeal  is  then 
"made"  on  May  26th.  The  courts  of  review  con- 
vene in  regular  terms  on  the  second  Monday  in  the 
months  of  January,  April  and  September,  Hence,  if 
the  appeal  is  made  on  May  26th,  the  appellant  is  not 
required  to  lodge   his  transcript  with  the  clerk  until 


324  Practice  in  Courts  of  Review. 

Thursday  after  the  second  Monday  in  the  month  of 
September  following.  But  if  the  appeal  be  "  made  " 
in  the  latter  part  of  February,  or  in  the  early  days  of 
March,  so  that  thirty  days  will  elapse  between  the 
day  of  the  "making"  of  the  appeal  and  the  first  day 
of  the  next  April  term  of  the  court  of  review,  the 
transcript  must  be  lodged  with  the  clerk  on  or  before 
the  Thursday  next  succeeding  the  second  Monday  in 
the  month  of  April  following,  unless  further  time  is 
given  by  the  court  for  good  cause  shown. 

It  seems  that  the  application  for  further  time  is  to 
be  made  during  the  jii'st  three  days  of  the  term  at 
which  the  transcript  ought  to  be  filed.  The  rule  of 
the  courts  is  to  regard  the  words  "  for  good  cause 
shown "  to  require  in  ordinary  cases  an  affidavit, 
which  shows  that  by  the  use  of  reasonable  care  and 
diligence  the  appellant  was  unable  to  procure  a  tran- 
script of  the  record  in  time  to  file  it  on  or  before  the 
time  specified.  The  good  cause  will  be  absence  of 
the  clerk  of  the  trial  court,  or  his  sickness,  or  ina- 
bility to  prepare  a  transcript  by  reason  of  press  of 
business  during  a  term  of  court.  But  the  court  will 
look  unfavorably  upon  an  application  for  an  exten 
sion  of  time  if  the  appellant  wait  until  the  last  days 
of  the  period  allowed  before  he  applies  to  the  clerk 
for  the  transcript. 


When  Jurisdiction  Attaches.  325 

When    Jurisdiction    of    Court    of    Review    At- 
taches ON  Appeal. 

Sec.  180.  To  give  the  court  of  review  jurisdiction 
to  make  an  order  in  a  case  appealed  to  it  from  a  court 
of  record,  a  duly  authenticated  transcript  of  the  pro- 
ceedings had  in  that  court  must  first  be  filed  in  the 
court  of  review,  to  which  the  appeal  was  taken. 
This  transcript  must  show  affirmatively  :  First.  That 
the  cause  appealed  is  one  in  which,  by  the  statute, 
an  appeal  is  authorized  to  be  taken  to  that  court  of 
review.  Second.  That  a  final  judgment  has  been 
pronounced  in  that  action  by  the  trial  court.  Third. 
That  the  party  who  appeals  is  not  the  party  in  the 
trial  court  in  whose  favor  the  judgment  was  given. 
Fourth.  That  an  appeal  was  prayed  within  the. time 
prescribed  by  the  statute,  and  allowed  by  the  trial 
court.  Fifth.  That  the  appeal  bond  required  has 
been  duly  executed,  in  the  penal  sum  fixed  by  the 
court  with  the  conditions  prescribed  by  the  statute, 
and  the  security  thereon  has  been  approved  by  the 
person  designated  by  the  court  to  approve  such  bond. 
Sixth.  That  the  bond  has  been  presented  within  the 
time  allowed  by  the  order  granting  the  appeal,  and 
duly  filed. 

Each  and  every  one  of  the  above  matters  must 
appear  in  the  transcript  filed,  before  the  court  of 
review  can  take  jurisdiction  to  make  any  order  in  the 
case  as  an  appealed  case.     The  jurisdiction  of  the 


326  Practice  in  Courts  of  Review. 

court  of  review  must  be  clearly  shown  to  have  at- 
tached, before  it  can  take  any  action  therein. 

A  strict  compliance  with  the  requirement  of  the 
statute,  that  the  appeal  be  prayed  within  five  (5)  days 
is  required,  and  the  District  Court  has  no  authority 
to  allow  an  appeal  if  it  be  prayed  after  the  expira- 
tion of  that  time. 

But  an  appeal  may  have  been  duly  prayed  and, 
through  an  inadvertence  of  the  clerk,  the  entry  of 
the  order  allowing  the  appeal  may  have  been  omitted 
in  the  record.  In  such  case  the  trial  court  will  have 
power  to  make  the  order  ninic  pro  time.  But  if  it 
affirmatively  appear  from  the  record  filed  that  the 
appeal  was  allowed  by  the  trial  court,  after  the  ex- 
piration of  the  time  prescribed  by  the  statute,  and 
nothing  appears  on  the  record  to  show  that  the  order 
allowing  the  appeal  was  an  order  made  nunc  pro  tunc, 
the  court  of  review  will  be  without  jurisdiction  of  the 
appeal.  Allowance  of  the  appeal  is  a  judicial  act, 
which  must  be  made  by  the  court,  hence  a  stipulation 
of  the  parties  cannot  give  the  court  jurisdiction  of 
an  appeal,  in  the  absence  of  a  judicial  order,  or  au- 
thorize an  extension  of  the  time  within  which  an 
appeal  may  be  prayed  and  allowed. 

So  it  must  affirmatively  appear  that  the  bond  was 
approved  and  filed  within  the  time  given  by  the  trial 
court  for  filing  it.  Great  strictness  as  to  filing  bond 
within  the  prescribed  time  is  exacted.  But  if  the  ap- 
pellant file  a  brief  or  abstract  before  objecting  that 


When  Jurisdiction  Attaches.  327 

the  bond  was  filed  out  of  time,  he  will  be  held  to  have 
waived  the  objection,  and  a  motion  to  dismiss  on  ac- 
count of  failure  to  file  bond  in  apt  time  will  be  denied.^ 

It  must  be  remembered  that  the  court  of  review 
must  look  only  to  the  record  for  all  the  above  items 
of  information,  and  cannot  go  outside  of  it  or  per- 
mit other  sources  of  information  to  influence  its  de- 
cision. Hence  if  the  transcript  insufficiently  state 
any  of  the  above  matters,  or  state  them  incorrectly, 
the  remedy  must  be  sought  by  an  application  to  the 
trial  court  for  an  amendment  or  correction  of  its 
record.  If  matters,  that  deprive  the  court  of  review 
of  jurisdiction  to  entertain  the  appeal,  appear  on  the 
face  of  the  record,  and  no  suggestion  of  an  error  in 
the  transcript  is  made  the  court  will  sua  sponte  dis- 
miss the  appeal  for  want  of  jurisdiction. 

If  appellant  fail  to  file  his  transcript  in  compliance 
with  the  statute,  or  within  the  further  time,  if  any, 
allowed  him  by  the  court,  the  appeal  may  be  dis- 
missed. It  is  held  that  the  further  time  for  filino- 
record  cannot  be  given  by  stipulation  of  counsel,  but 
must  be  given  by  an  order  of  the  court  and  before 
the  time  prescribed  by  the  statute  for  filing  it  expires. 
But  where  a  stipulation  of  counsel  is  entered  into, 
extending  the  time  for  filing  the  transcript,  such 
stipulation  should  be  brought  to  the  attention  of  the 
court,  and  an  order  extending  the  time  based  on  such 
stipulation  asked  of  the  court. 

'Win.   Pap.  Co.  v.  Bank,  33  111.  App.  631;    Fairbank  v.  Streeter, 
41  111.  App.  436. 


328  Practice  in  Courts  of  Review. 

Procedure  by  Appellee. 

Sec.  i8i.  No  scire  facias  or  summons  to  hear 
errors,  or  notice  of  any  kind  whatever  that  the  appeal 
has  been  perfected  by  appellant  is  required  to  be 
given  to  the  appellee.  The  appeal  being  but  a  con- 
tinuation of  the  original  action  transferred  to  the 
court  of  review  by  the  appeal,^  the  appellee  is  held  to 
have  notice  of  that  transfer  by  the  filing  of  the 
appeal  bond  in  the  trial  court,  and  to  be  obliged  to 
follow  up  the  cause  into  the  court  of  review,  without 
service  of  any  notice  upon  him.  The  law  as  to  notice 
of  appeal  from  County  to  District  Courts  does  not 
apply  to  appeals  to  courts  of  review.  Hence,  if 
appellee  desire  to  resist  the  appeal,  he  must  enter 
his  appearance  in  the  appellate  court  by  a  joinder  in 
error,  or  by  some  other  proper  action  in  the  appellate 
court. 

Appeal  —  When  Dismissed. 

Sec.  182.  Before  joining  in  error  the  first  step  to 
be  taken  by  appellee  is  to  apply  for  a  dismissal  of 
the  appeal,  if  there  be  any  ground  for  such  dismissal. 

The  first  ground  for  making  such  application  will 
be  the  failure  of  appellant  to  lodge  his  transcript 
within  the  time  prescribed  by  the  statute ;  or,  if  an 
extension  of  time  be  given,  within  the   further  time 

'  Connor  v.  Est.  of  Connor,  4  Colo.  74;  Colo.   Spgs.  v.  Cowell,  6 
Colo.  73. 


Dismissal  of  Appeal.  329 

allowed.  The  application  is  to  be  made  only  after 
the  time  for  filing  has  fully  expired ;  that  is,  on  or 
after  the  fourth  day  of  the  term.  No  rule  of  court 
requires  written  notice  of  the  motion  to  be  given  to 
appellant,  but  it  is  apprehended  that  such  a  motion 
ought  not  to  be  entertained  without  proof  of  such 
notice  under  the  Code.  The  appellant  has  entered 
his  appearance  by  filing  his  appeal  bond/  and  is 
entitled  to  notice  of  all  motions  in  the  case.  The 
case  seems  to  be  decided  in  this  view  by  the  case  of 
Gates  V.  Mack,  6  Colo.  401,  where  it  was  held  that 
the  County  Court  should  not  dismiss  an  appeal  with- 
out notice,  as  appellant  is  in  court  by  the  filing  of 
his  appeal  bond.  The  giving  of  such  notice  will  not 
enable  the  defaulting  appellant  to  file  his  transcript 
before  the  motion  is  heard  and  thus  render  the  motion 
ineffective.  Nor  will  the  court  give  leave  to  file  the 
transcript  after  the  statutory  time  has  expired,  on  a 
motion  made  after  the  expiration  of  that  time,  courts 
usually  holding  that  no  extension  of  time  to  do  an 
act  is  grantable  after  the  adverse  party  has  acquired 
a  right  to  a  default  for  failure  to  perform  that  act. 
This  view  seems  to  be  supported  by  the  case  of  Straat 
v.  Blanchard,    14  Colo.  445. 

On  such  motion,  after  due  notice,  under  rule  12  of 
the  Supreme  Court,  appellee  will  present  to  the 
court   of   review  a  transcript   of  the  judgment,    the 

'  Wyatt  V.   Freeman,  4  Colo.   14  ;    Swensen  v.  Ins.   Co.  4  Colo. 

475- 

42 


330  Practice  in  Courts  of  Review. 

order  allowing  the  appeal,  the  appeal  bond  and  its 
approval,  duly  certified  under  the  hand  of  the  clerk 
and  seal  of  the  trial  court,  in  support  of  his  motion  to 
dismiss.  If  it  appear  from  such  transcript  that  the 
time  for  filing  the  record  in  the  court  of  review  pre- 
scribed by  the  Code  has  expired,  and  from  the  record 
of  the  appellate  court  it  is  found  that  no  transcript 
of  the  record  is  filed  with  the  clerk,  and  that  no 
application  for  an  extension  of  time  has  been  made 
and  is  then  pending,  the  court  of  review  will  dismiss 
the  appeal. 

Another  reason  for  requiring  notice  of  the  motion 
to  dismiss  is  that  the  appeal  may  be  dismissed  "  with- 
out prejudice  "to  appellant's  right  to  proceed  by  writ 
of  error.  He  may  have  inadvertently  neglected  to 
file  his  transcript  until  the  time  for  doing  so  has  ex- 
pired, and  yet  on  the  hearing  of  the  motion  to  dismiss, 
which  he  may  be  unable  to  effectually  resist,  he  may 
desire  that  the  case  be  heard  on  error,  and  ask  the 
proper  order  in  that  case. 

An  appeal  may  be  dismissed  because  the  action  or 
proceeding  is  one  from  which  an  appeal  will  not  lie 
to  either  court  of  review.  Or,  because  the  jurisdic- 
tional amount  required  for  an  appeal  to  the  Supreme 
court  does  not  exist.  Or.  because  it  appears  on  the 
face  of  the  transcript  that  the  appeal  was  prayed 
and  allowed  after  the  expiration  of  the  five  days, 
or  by  the  judge  at  chambers  before  the  adjourn- 
ment of  the  court  for  the  term.      Or,  because  the 


Grounds  for  Dismissal.  331 

transcript   shows  that  no  final  judgment    has    been 
given  by  the  trial  court. ^ 

So  where  the  appeal  bond  taken  by  the  clerk  of 
the  trial  court  is  found  to  be  substantially  defective, 
and  appellant  has  been  ruled  to  file  an  amended 
bond,  and  has  failed  to  comply  with  such  rule,  the 
appeal  may  be  dismissed  on  motion. 

The  appellant   may  also  dismiss  his  appeal  of  his 
own  motion,  but  in  such  case,  if  he  desire  to  proceed 
by  writ  of  error,  he  must  be  careful  to  have  the  ap 
peal  dismissed  "without  prejudice"  under  section  397 
of  the  Code. 

All  motions  to  dismiss  the  appeal  should  be  made, 
when  made  for  any  of  the  foregoing  reasons,  before 
joining  in  error,  for  in  many  cases  a  failure  to  inter- 
pose such  a  motion  will  be  held  a  waiver  of  the 
objection,  if  it  be  one  that  is  capable  of  being 
waived. 

Where  the  appeal  bond  filed  in  the  trial  court  is 

substantially  defective,  a  motion  to  strike  the  appeal 

bond  from  the  record   is  a  proper  motion,  under  the 

opinion  in  People  v.  Adams,  13  Colo.  550,  but  it  may 

be  met   by   a  cross-motion    for  leave  to  amend  the 
bond. 

The  procedure  on  joinder  in  error,  and  thereafter 

to  the    final   decision  by  the   court  of   review,  is   the 

same  as  on  writ  of  error. 


'  Londoner  V.  People,  15  Colo.  247;  Dusing  v.  Nelson,  6  Colo.  39; 
Shackleford  v.  King,  6  Colo.  37  ;  Higgins  v.  Brown,  6  Colo.  148  ; 
Wheeler  v.  Garrett,  13  Colo.  550;  Crane  v.  Farmer,  14  Colo.  294. 


332  Practice  in  Courts  of  Review. 

Certiorari  as  a  part  of  the  appellate  proceedings 
in  a  court  of  review  is  not  herein  treated  of  for  the 
reason  that  the  Supreme  Court,  which  alone  has  ju- 
risdiction of  such  proceeding,  as  a  part  of  its  original 
jurisdiction,  uniformly  refuses  to  issue  such  writ,  if 
an  application  therefor  can  be  properly  made  to  any 
other  court  of  record.  Such  writ  can  only  be  issued 
to  a  District  Court  from  the  Supreme  Court,  under 
its  practice,  and  if  the  correction  of  the  error,  on 
account  of  which  the  certiorari  is  asked,  is  obtainable 
by  appeal  or  a  writ  of  error,  the  Supreme  Court  will 
refuse  it. 


Order.  333 


CHAPTER  XII. 
Of  Motions  and  Orders. 

Sec.  183.  What  is  an  order. 

184.  What  is  a  motion. 

185.  Motions  —  where  to  be  made. 

186.  Notice  of  motion  —  when  required. 

187.  Motion  —  when  to  be  supported  by  affidavit. 

188.  Of  entithng  the  affidavit. 

189.  Notice  of  motion. 

190.  Notice  —  how  to  be  served.     Service  —  personal.     Ser- 

vice on  attorney's  clerk.  When  no  person  m  attorney's 
office.  Where  attorney's  office  is  not  open.  Where  at- 
torney's residence  is  not  known.  Service  on  a  party  to 
the  action. 

191.  Service  by  "mail."     When  authorized. 

192.  Service  by  mail.     Distance.     Time. 

193.  Presumption  from  proper  mailing  of  notice. 

194.  Proof  of  service  of  notice. 

195.  Forms  of  proof  of  service.     Personal  service.     If  left  at 

office.     If  no  one  in  office.     Service  by  mail. 

196.  Hearing  of  motion. 

What  is  an  Order. 

Sec.  183.  Every  direction  made  by  the  court  or  a 
judge  thereof,  in  an  action  or  proceeding,  pending, 
or  about  to  be  commenced,  in  the  court  of  which  he 
is  a  judge,  and  reduced  to  writing  by  him  or  under 
his  direction,  which  is  not  included  in  a  judgment  in 


334  Practice  in  Courts  of  Review. 

such  action  or  proceeding,  is  denominated  an  order 
by  the  Code  of  Civil  Procedure. 

Sections  371  to  384,  inclusively,  of  the  Code  of 
Civil  Procedure,  relate  to  the  procedure  on  "  Motions 
and  Orders,"  and  it  is  apprehended  that  the  proced- 
ure therein  prescribed  is  equally  as  applicable  to  the 
courts  of  review,  as  it  is  to  the  inferior  courts  of 
record  of  the  State. 

In  the  course  of  the  procedure  in  the  Supreme 
Court,  as  well  as  in  the  Court  of  Appeals,  each  party 
to  the  writ  of  error  or  appeal  will  necessarily  ask  di- 
rections of  the  court,  or  of  a  judge  thereof  when  the 
court  is  not  sitting,  in  relation  to  many  matters  that 
will  arise,  in  which  he  may  not  take  action,  without 
asking  such  direction.^ 

What  is  a  Motion. 

Sec.  184.  An  application  to  the  court  or  a  judge, 
thereof  for  an  "order"  is  denominated  a  "motion" 
This  application  may  be  made  either  orally,  that  is 
by  word  of  mouth  in  open  court,  or  to  the  judge,  sit- 
ting at  chambers,  or  the  application  may  be  reduced 
to  writing  and  filed  in  the  proper  court  in  the  cause 
in  and  concerning  which  the  "order"  is  asked. 

An  oral  motion  is  one  made  viva  voce  in  open 
court,  and  is  not  previously  reduced  to  writing, 
signed  by  the  party  or  attorney  who  makes  it,  and 


'Code,  §    371;  Thorne  v.  Ornauer,  8  Colo.   353;  Mallan  v.  Hig- 
genbotham  et  al.,  lo  Colo.  264;  Hughes  v.  McCoy,  11  Colo.  591. 


Motion.  335 

placed   among-  the  files  of  the  cause   in  which  it  is 
made. 

A  written  motion  is  one  that  has  been  reduced  to 
writing,  signed  by  the  party  or  attorney  who  makes 
it,  and  then  filed  in  the  cause  in  which  it  is  made, 
with  the  papers  pertaining  to  that  cause.  But 
though  written  and  properly  filed,  the  motion  must 
be  called  to  the  attention  of  the  court  while  in  ses- 
sion, by  viva  voce  application  to  be  heard  on  such 
motion.  The  mere  fact  of  filing  it,  though  it  makes 
it  a  part  of  the  files  in  the  cause,  does  not  impose  on 
the  court  the  duty  of  calling  up  and  deciding  on  the 
application,  until  its  attention  is  directed  to  the  written 
motion  on  file,  and  its  action  thereon  requested  by 
one  of  the  parties  to  the  litigation. 

Motions —  Where  to  be  Made. 

Sec.  185.  In  matters  pending  in  trial  courts  of  rec- 
ord, the  Code  provides  that  a  motion  in  an  action 
must  be  made  : 

First.  To  the  court  in  which  the  action  is  pend- 
ing, sitting  in  the  county  in  which  the  action  is  for 
trial  at  the  time  of  making  the  motion.  This  pro- 
vision applies  to  the  County  Courts,  to  the  District 
Court  when  sitting  in  such  county,  and  to  the  courts 
of  review.  As  the  two  courts  of  review  are  required 
by  law  to  sit  at  Denver,  in  Arapahoe  county,  it  fol- 
lows that  all  motions  pending  in  either  of  these  two 


336  Practice  in  Courts  of  Review. 

courts  must  be  made  in  Denver,  and  can  be  made 
and  heard  at  no  other  place  in  the  State. 

Second.  If  the  motion  is  to  be  heard  at  any  other 
place  than  in  open  court,  at  a  sitting  thereof,  it  must  be 
made  to  the  judge,  not  as  a  "  court  "  but  as  sitting  "  at 
chambers."  This  provision  is  applicable  only  to 
judges  of  the  District  Court,  since  county  judges  can 
do  no  official  business  in  any  other  county  than  that 
of  which  they  are  judges.  So  a  district  judge  can, 
under  the  statute,  hear  a  motion  pertaining  to  an  ac- 
tion pending  in  any  county  within  his  judicial  district, 
nowhere  except  within  the  judicial  district  of  which 
he  is  the  district  judge.  But  as  the  judges  of  the 
District  Courts  are  required  by  law  to  sit  in  other 
judicial  districts,  if  while  so  sitting,  a  matter  pertain- 
ing to  an  action  or  proceeding  pending  in  a  county 
of  his  proper  district  comes  before  him  for  hearing 
on  a  motion,  it  seems  that,  under  the  Code,  he  can- 
not hear  such  motion  or  determine  on  such  applica- 
tion until  he  returns  to  his  proper  district.  For  all 
purposes  he  ceases,  for  the  time  being,  to  be  the  judge 
of  his  own  district,  and  becomes  pro  tent,  a  judge 
of  the  judicial  district,  in  which  he  is  sitting  as  a 
judge. 

The  instances  in  which  an  application  can  be  made 
to  a  judge  of  a  court  of  review  "  at  chambers"  are 
few.  It  is  most  frequently  incases  of  an  application 
for  a  supersedeas  in  a  civil  or  criminal  case,  which  may 
be  made  to  a  particular  judge  of  the  court  of  review, 


Notice  of  Motion.  337 

when  the  court  is  not  in  session,  and  an  application  for 
a  writ  of  habeas  corpus  to  an  individual  judge  of  the 
Supreme  Court.  But  in  all  such  cases  no  provision  is 
made  by  law  for  hearing  such  application  at  any 
other  place  than  at  the  city  of  Denver.  Yet  a  liberal 
construction  of  the  words  of  the  Code,  *'  any  county 
in  the  same  district,"  might  permit  a  motion  in  a 
cause  pending  in  a  court  of  review  to  be  heard  by  a 
judge  of  such  court  at  any  place  in  the  State,  at 
which  such  judge  may  be  temporarily  sojourning  at 
the  time,  since  the  whole  State  composes  only  one 
district  for  the  judges  of  both  courts  of  review.^ 

Notice  of  Motion  —  When  Required. 

Sec.  186.  The  Code  provides  that  "  written  notice 
of  motions  shall  be  required  in  all  cases,  except  those 
made  during  the  progress  of  a  trial."  A  trial  is  de- 
fined to  be  a  "judicial  examination  of  the  issues  in  the 
action,  whether  such  issues  be  issues  of  law  or  issues 
of  fact."  Hence  when  an  action  is  pending  in  atrial 
court,  all  motions  and  applications  for  orders  which 
are  not  made  during  the  trial  of  the  issues  of  fact, 
whether  before  a  jury  or  before  the  court,  must  be 
accompanied  with  a  notice  in  writing  to  the  adverse 
party,  of  the  nature  of  the  motion,  and  of  the  time 
and  place  at  which  such  motion  will  be  heard. 


'  Code.  §  372. 

43 


33S  Practice  in  Courts  of  Review 

Form  of  Notice  of  Motion 
State  of  , 


County  of 

{Court.^ 

Title  of  cause. 
To ,  above  named : 

Take  notice  that  on  the day  of,  A,  D.  i8 — ,  or  as  soon 

thereafter  as  I  can  be  heard,   at  the  incoming  of  the Court,  at 

o'clock, — .    M.   of  said  day,    I  shall  move  the  court  for    an 

order  {here  state  the  substance  of  the  order  to  be  applied  for,  or  ac- 
company notice  with  a  written  copy  of  the  motion  filed  or  to  be 
filed ) . 

When  and  where  you  may  appear,  if  you  desire  to  resist  such 
application. 

{Date.)  Attorney  for . 


As,  in  the  courts  of  review,  no  trial,  properly  so 
termed,  takes  place  in  open  session  of  the  court, 
either  on  appeal  or  writ  of  error,  the  exception  seems 
to  be  properly  applicable  only  to  courts  of  record, 
properly  denominated  trial  courts.  It  follows,  there- 
fore, that  in  strictness  of  construction  all  motions 
made  in  courts  of  review  should  be  preceded  by  a 
written  notice  thereof  served  on  the  adverse  party.^ 

There  may  be  a  few  cases  in  which  the  court  may 
make  ex  farte  orders  in  a  cause  on  review,  but  they 
will  usually  be  such  orders  as  affect  only  the  party 
applying  for  them,  and  cannot  possibly  prejudice 
the  adverse  party. 


1  Code,  §  372. 


What  Time  to  Begin.  339 

The  notice  of  the  motion  is  addressed  to  the  ad- 
verse party  ;  states  the  court  in  which  the  motion  will 
be  made  :  the  action  in  which  the   motion   is  to   be 
made;  and  the  time  and  place  at  which  the  motion  will 
be  called  to  the  attention  of  the  court,   and  is  signed 
by  the  party  who  proposes  to  make  the  application, 
and  dated.     Such  notice  is  usually  accompanied  with  a 
copy  of  the  motion,  and  this  is  the  better  practice.     If 
a  copy  of  the  motion  be  not  accompanying  the  notice, 
the  latter  should  state  the  nature  of  the  motion,  and 
the  grounds  that  it  is  to  be  based  on  with  reasonable 
certainty,  so  that  the  adverse  party  may  be  able  to 
prepare  to  resist  such  motion  at  the  hearing    thereof' 
It  is  the  usual  practice  to  add  to  the  designation  of 
the  time  in  the  notice   the   following  words:   "  or  as 
soon  thereafter  as   I  can  be  heard."      The  effect  of 
such  words  Is  to  continue  the  hearing  of  the  applica- 
tion,   when    causes   not    within    the    control    of    the 
moving  party,  and  of  which  the  adverse  party  is  equally 
bound  to  take  notice,  intervene  between  the  time  of 
giving   the  notice  and   the  time  appointed   for   the 
hearing,  which  prevent  a  hearing  at  the  appointed 
time.     Such  causes  are  the  adjournment  of  the  court 
to  a  future   day,  an  adjournment   for   the  term,   and 
similar  causes.      In  such  cases  an  adjournment  of  the 
court  will  continue  the  motion  on  the  hearing  docket, 
and   no    new   notice   of   the   motion  will  be  required 
before    it    can    be    presented    to    the    court    for    its 
action. 

'  Freeborn  v.  Glazier,  lo  Cal.  337;  Allen  v.  Beekman,  42  Wis.  185; 
Eaton  V.  Supervisors,  42  Wis.  3.17. 


340  Practice  in  Courts  of  Review. 

If  the  application  is  to  be  heard  during  the  term 
of  the  court,  and  the  parties  or  their  attorneys  reside 
in  the  same  county  in  which  the  court  is  sitting,  the 
Code  requires  that  a  notice  of  a  motion  shall  be  given 
at  least  twenty-four  hours  before  the  time  appointed 
for  the  hearing  of  the  motion. 

As  the  notice  is  required  to  be  actually  served  on 
the  party  or  his  attorney,  the  residence  is  held  to  be 
the  place  where  the  party  served  is  at  the  time  of 
service. 

Rule  29,  both  of  the  Supreme  Court  and  of  the 
Court  of  Appeals,  require  written  notice  of  all  motions 
to  be  given  at  least  twenty-four  hours  before  the  time 
set  for  hearing,  unless  such  time  is  waived,  or  the  ad- 
verse party  has  not  entered  an  appearance  in  the 
court  of  review.  But  this  requirement  is  on  the  as- 
sumption, as  is  usually  the  case,  that  the  attorneys 
reside  in  Denver  or  its  immediate  vicinity. 

But  if  the  attorneys  conducting  the  case  are  resi- 
dents of  other  counties,  we  apprehend  the  Code  rule 
of  three  days  will  apply,  with  the  addition  of  one  ad- 
ditional day  for  each  twenty-five  miles  between  the 
place  where  the  notice  is  deposited  in  the  post-office 
and  the  place,  where  the  party^  or  attorney  to  whom 
the  notice  is  addressed  resides.  There  have  been  no 
published  rulings  on  this  point  in  Colorado 


'  Code,  §  37.3. 


Affidavit  in  Support.  341 

Motion. — When  to  be   Supported    by  Affidavit. 

Sec.  187.  When  the  facts  upon  which  the  motion 
is  founded  appear  in  the  record  in  the  court  of  re- 
view and  are  ascertainable  by  a  mere  inspection  of 
such  record,  as  the  record  imports  verity  and  cannot 
be  contradicted  by  any  matter  dehors  the  record,  an 
affidavit  in  support  of  such  motion  is  not  necessary. 
But,  if  proof  of  facts  set  out  in  the  motion,  not  found 
in  the  record,  be  necessary  to  support  the  motion, 
such  proof  is  made  by  an  affidavit.  This  affidavit 
should  be  filed  with  the  motion  and  a  copy  thereof 
be  served  with  the  notice  of  the  motion. 

Thus  when  a  motion  is  made  to  dismiss  a  writ  of 
error,  because  it  has  been  sued  out  after  the  time 
limited  by  the  statute,  as  the  transcript  of  the  record 
will  show  when  the  trial  court,  by  which  the  judgment 
was  rendered,  adjourned  for  the  term,  the  court  of 
review  will  be  governed  wholly  by  the  statement  of 
the  transcript,  and  no  affidavit  will  be  required.  But 
if  it  be  alleged  that  the  transcript  makes  an  incorrect 
statement  of  the  facts,  an  affidavit  is  proper  to  sup- 
port a  motion  for  an  additional  or  corrected  transcript, 
which  must  be  applied  for  to  the  clerk  of  or  to  the  trial 
court,  the  court  of  review  having  no  power  to  amend 
the  transcript  of  the  trial  court  So,  if  it  be  alleged 
that  the  party  who  sues  out  the  writ  of  error  is 
within  the  exceptions  of  the  statute  of  limitations, 
and  for  that  reason  that  the  writ  has  been  sued  out 


342  Practice  in  Courts  of  Review. 

in  proper  time,  such  fact  must  be  established  by  affi- 
davit. 

If  the  motion  be  for  permission  to  make  new  par- 
ties to  a  writ  of  error,  an  affidavit  showing  who  the 
parties  are  ;  that  they  are  within  the  jurisdiction  ; 
and  that  they  are  either  necessary  or  proper  parties 
thereto,  because  the  judgment  of  the  trial  court  will 
affect  their  substantial  rights,  will  be  required.  An 
experienced  practitioner  will  easily  learn  when  an 
affidavit  in  support  of  his  motion   is  necessary. 

The  affidavit  must  state  in  what  State  and  county 
it  was  made.  This  is  necessary  to  show  where  the 
oath  was  administered,  and  that  the  officer  who  ad^ 
ministered  the  oath  was  acting  within  his  territorial 
jurisdiction.  If  sworn  to  out  of  his  jurisdiction,  the 
oath  is  a  nullity.^  If  administered  by  an  officer  within 
the  State  of  Colorado,  the  court  takes  judicial  notice 
of  the  territorial  limits  within  which  he  is  empowered 
to  act.  If  no  venue  is  given  in  the  affidavit  the  court 
may  refuse  to  consider  it,  but  the  usual  practice  is  to 
permit  it  to  be  amended  in  this  respect,  if  the  omission 
to  state  the  venue  be  occasioned  by  inadvertence. 

The  affidavit  may  be  sworn  to  before  any  officer, 
who  is  by  law  empowered  to  take  affidavits  and 
administer  oaths,  and  if  the  oath  have  been  ad- 
ministered outside  of  the  State,  no  certificate  of  au- 
thority to   administer  such   oath  will  usually  be  re- 

'  Van  Deusen  v.  People,  78  111.  645;  Smith  v.  Richardson,  i  Utah, 
194;  Anderson  v.  Sloan,  i  Colo.  83. 


Title  —  Language  —  J  urats.  343 

quired,  if  the  officer  have  an  official  seal.  But  the 
affidavit  must  not  be  sworn  to  before  the  attorney  of 
the  party,  even  though  such  attorney  be  duly  em- 
powered to  administer  oaths.^ 

Of  Entitling  the  Affidavit. 

Sec.  188.  The  Code  provides  that  an  affidavit 
without  the  title  of  the  action  or  proceeding  in 
which  it  is  made,  that  is,  without  giving  the  names 
of  the  parties  to  the  action  or  the  court  in  which 
such  action  is  pending,  shall  be  as  effectual  for  any 
purpose  as  if  it  were  duly  entitled,  if  it  intelligibly 
refer  to  such  action  or  proceeding. 

The  rule  of  practice  is  that  if  the  affidavit  be  in- 
tended for  procuring  a  writ,  such  as  a  certiorari  or 
other  similar  writ,  for  which  a  verified  application 
must  be  made  to  a  court  or  a  judge,  before  the  suit 
is  commenced,  no  entitling  of  the  affidavit  is  permis- 
sible, as  no  action  or  proceeding  is  at  that  time 
pending  in  any  court.  At  common  law  the  entitling 
of  an  affidavit  in  such  case  would  be  fatal  to  it.  But 
it  is  otherwise  under  the  Code.  But  if  an  action  or 
proceeding  have  been  already  instituted  in  the  court 
the  affidavit  should  be  entitled,  that  is,  should  give 
the  names  of  the  parties  to  the  action  and  the  court 
in  which  such  action  is  then  pending.- 

Thus  when  an  application  is  made  to  the  Supreme 
Court   for  an  allowance  of   one  of  the  writs   it  is  au- 

•  Anderson  v.  Sloan,  i  Colo.,  83.  "  Code,  §  383. 


344  Practice  in  Courts  of  Review. 

thorized  to  issue  in  the  exercise  of  its  original  juris- 
diction, the  verified  petition  is  not  to  be  entitled. 
But  when  the  particular  writ  is  applied  for  in  aid  of  its 
appellate  jurisdiction,  the  verified  petition  is  properly 
entitled  in  that  action,  in  aid  of  which  the  particular 
writ  is  asked. 

The  afilidavit  must  also  be  in  the  English  language. 
This  is  a  requirement  of  the  Code.  All  proceedings 
in  the  courts  of  this  State  are  conducted  in  the  English 
language,  because  that  is  the  language  of  the  people. 
The  judges  of  the  courts,  to  whom  the  affidavits 
must  be  submitted  for  perusal  and  consideration,  are 
not  presumed  to  have  knowledge  of  any  other  lan- 
guage than  the  English  language.  Hence,  if  the 
affidavit  be  in  a  foreign  language,  the  court  may  re- 
fuse to  consider  it.  This  is,  however,  discretionary 
with  the  court  The  better  practice,  however,  is  to  ac- 
company the  affidavit,  couched  in  a  foreign  language, 
with  a  sworn  translation  of  the  same  into  English. 

The  jurat  of  the  affidavit  must  state  the  day, 
month  and  year,  on  which  the  oath  to  the  affidavit 
was  administered.  The  omission  of  the  words  "before 
me  "  in  the  jurat  has  been  held  to  be  a  fatal  defect. 

A  jurat  which  does  not  give  the  official  designa- 
tion of  the  officer  who  administered  the  oath  to  the 
affidavit  is  defective  on  its  face.^ 


'Code,  §  411  ;  Dunton  v.  Montoya,  i  Colo.  99;  Trinidad  v.  Simp- 
son, 5  Colo.  69;  Spencer  V.  Doane,  23  Cal.  420;  Reg.  v.  Bloxham, 
6  C.  B.  528  ;  Knight  v.  Elliot,  22  Minn.  551. 


To  Whom  Notice  to  be  Given.  345 

Notice  of  Motion. 

Sec.  189.  Under  the  Code,  as  well  as  under  rule 
29  of  the  courts  of  review,  when  a  party  to  an  ac- 
tion or  proceeding  pending  in  any  court  of  record 
desires  to  apply  for  an  order  in  such  action  to  the 
court  or  a  judge  thereof,  he  must  first  serve  on  the 
adverse  party,  if  such  party  have  appeared  in  the  ac- 
tion, or  his  attorney  of  record  in  that  action,  a  written 
notice,  as  hereinbefore  stated  (sec.  186).  Except  in 
case  of  an  application  for  a  preliminary  injunction  in  a 
trial  court,  the  provisions  of  section  148  of  the  Code, 
and  in  the  Supreme  Court  n  cases  of  an  application 
for  original  writs,  an  application  for  an  order  in  a 
cause,  not  necessarily  preliminary  to  the  institution 
of  the  action  or  proceeding,  will  not  be  entertained 
by  the  court  or  judge  until  due  and  legal  service 
of  notice  of  intention  to  apply  for  such  order  has 
been  made  upon  the  party  adversely  interested,  or 
his  attorney  of  record,  nor  until  the  court  has  ob- 
tained jurisdiction  of  such  adverse  party,  by  due  ser- 
vice of  process  on  him. 

The  only  exception  to  this  rule  is  when  the  ad- 
verse party  is  a  non-resident  of  the  State,  is  absent 
from  the  State  at  that  time,  and  has  no  attorney  resi- 
dent or  present  in  the  State  for  the  purpose  of  that 
action,  or  when  the  adverse  party,  residing  in  the 
State,  has  entered  no  appearance  to  that  action.^ 

'  Code,  §  372;  Shotwell  v.  Rowell,  30  Ga.  557. 
44 


346  Practice  in  Courts  of  Review. 

Section  2>72)  ^^  ^^^  Code  abrogates  the  common- 
law  practice  as  to  motions,  whereby  an  attorney  in 
an  action  or  proceeding  was  required  to  take  notice 
of  all  written  motions  filed  in  the  action  during  the 
term,  by  the  adverse  party,  and  was  not  entitled  to 
any  notice  of  the  filing  thereof.  The  common-law 
rule  is,  however,  in  force  in  criminal  cases,  as  the 
Code  does  not  apply  to  such  cases. 

Presence  of  counsel  in  the  court-room,  at  the  time 
of  the  callinor  of  the  attention  of  the  court  to  the 
motion,  by  the  moving  party,  is  not  sufficient  to 
waive  the  service  of  the  notice,  nor  is  an  informal 
verbal  notice,  while  in  conversation  with  opposing 
counsel,  deemed  a  sufficient  waiver  of  the  written 
notice.^ 

But  if  the  counsel,  when  present,  contests  the 
allowance  of  the  motion  on  its  merits,  and  does  not 
confine  his  objection  to  the  want  of  a  written  notice 
of  the  application,  or  to  the  insufficiency  of  the 
notice,  if  any  were  given,  this  will  be  held  a  waiver 
of  the  written  notice."^ 

In  all  cases  in  which  the  party  has  an  attorney, 
who  has  appeared  for  him  in  the  action  or  proceed- 
ing, the  service  of  all  papers  in  the  action  shall  be 
either  upon  the  attorney  or  upon  the  party  himself. 
And  the  Code  further  provides  that  after  a  defend- 
ant has  appeared  in  the  action,  he  or  his  attorney 

'  B.  R.  &  A.  Co.  V.  Bowles,  24  Cal.  354. 
'Brown  v.  State,  8  Heisk.  871. 


Service  of  Notice.  347 

shall  be  entitled  to  notice  of  all  subsequent  proceed- 
ings, of  which  notice  is  required  to  be  given. ^ 

The  word  "  party "  means  one  of  the  opposing 
litigants.  But  where  there  are  several  plaintiffs  or 
several  defendants  the  word  "party"  embraces  all 
the  individuals  on  each  side  of  the  case,  whether 
plaintiffs  or  defendants.^ 

The  word  "  attorney"  includes  an  attorney  at  law, 
and  every  person  who  is  authorized  to  appear  in  a 
court  of  record  to  represent  one  of  the  parties  to  an 
action  or  proceeding  at  any  stage  thereof.^ 

Notice  —  How  to  be  Served. 

Stc.  190.  The  service  of  the  notice  may  be  either 
personal  or  by  mail.  Personal  service  is  made  by 
delivering  it  to  the  attorney  himself.  In  such  case 
the  place  of  service  is  not  material,  provided  the 
notice  is  placed  in  the  hands  of  the  attorney.  The 
Code  provides  that  service  may  be  made  on  the 
party,  or  on  the  attorney,  at  the  election  of  the  per- 
son giving  the  notice.^ 

It  will  sometimes  happen  that  a  party  will  refuse 
to  receive  a  notice  when  offered  to  him.  In  such 
case  the  courts  hold  that  if  a  person,  on  whom  it  is 
sought  to  serve  a  notice,  decline  to  receive  it  from 
the  hands  of  the  person  seeking  to  serve  it,  when  it 

'  Code,  §§  370-379- 

*  Hobbs  V.  Davis,  56  N.  H.  74;  Rupp  v.  Swineford,  40  Wis.  28. 

^Code,  §  442. 

•*  Nathan  v.  Sutphen,  63  Cal.  267. 


348  Practice  in  Courts  of  Review. 

is  decorously  offered  to  him,  he  being  informed  of 
the  character  of  the  paper  offered,  the  person  serv- 
ing it  may  deposit  it  in  any  convenient  place,  in 
presence  of  such  party,  and  notify  him  of  that  fact. 
Such  offer,  refusal  to  accept  and  the  depositing  of 
the  papers  for  him  and  in  his  presence,  is  held  to  be 
due  and  legal  service  of  such  paper.^  Thus  in  Wis- 
consin, where  a  notice  was  offered  to  the  attorney  by 
a  competent  person,  in  the  attorney's  office,  and  the 
attorney  refused  to  receive  it,  leaving  it  on  a  table  in 
the  office,  in  front  of  which  the  attorney  was  stand- 
ing, was  held  to  be  sufficient  service. 

The  principle  on  which  such  rulings  are  made  is 
that  a  person  will  not  be  permitted  to  take  advantage 
from  his  own  wilful  wrongrful  act.~  But  in  all  such 
cases  .  the  person  attempting  to  serve  the  notice 
should  state  what  the  paper  is,  that  the  person 
served  may  act  advisedly.  This  is  prescribed  by  the 
Code  in  case  of  serving  a  summons. 

Service  on  Attorney's  Clerk. 

The  Code  further  provides  that  the  service  of  a 
notice  of  a  motion  may  be  made  on  the  attorney  at 
his  office:  First,  by  leaving  it  therein  with  his  clerk, 
if  he  be  absent  from  his  office  at  the  time  of  service; 
or.  Secondly,  by  leaving  it  therein  with  a  person  who 

1  Norton  v.  Maeder,  4  Sawy.  619. 

-Smith's  Sheriffs  and  Coroners,  196;  Slaght  v.  Robbins,  13  N.  J. 
Law,   340. 


On  Attorney's  Clerk.  349 

is  at  that  time  in  charge  of  the  office,  though  not  the 
attorney's  clerk. 

But  if  the  attorney,  or  one  of  the  attorneys,  upon 
whom  service  is  to  be  made,  be  in  the  office  at  the 
time  of  the  attempted  service,  valid  service  can  only 
be  made  by  delivering  the  copy  to  the  attorney 
himself.  Delivery  to  the  clerk,  unless  by  direction 
of  the  attorney,  will  not  be  valid  service,  if  the  attor- 
ney object  to  such  mode  of  service. 

The  practice  is  for  the  attorney,  or  person  who 
represents  him,  to  give  a  receipt  for  the  copy,  which 
is  indorsed  on  the  original  notice,  and  is  proof  of 
service  thereof. 

Such  receipt  is  usually  as  follows: 


Received  a  copy  of  the  foregoing  notice  this day  of  ■ 

A.  D.  18—.  


A  receipt  in  such  form  is  merely  an  acknowledg- 
ment of  the  receipt  of  the  copy  of  the  notice,  and 
leaves  open  to  question  its  sufficiency,  and  all  other 
questions,  except  that  of  actual  receipt.^ 

When   No  Person  in  Attorney's  Office. 

The  attorney's  office,  at  the  time  of  the  attempted 
service,  may  be  open,  yet  no  one  be  therein  on  whom 
legal  service  of  the  notice  may  be  made.  The  Code 
provides  how  legal  service  may  be  made  in  such 
cases. 


•  U.  N.  Bank  v.  Benjamin,       Wis.      ;  Code,  §  376. 


350  Practice  in  Courts  of  Review. 

"When  there  is  no  person  in  the  attorney's  office, 
service  may  be  made  by  leaving  the  notice  in  a  con- 
spicuous place  m  the  office,  between  the  hours  of 
eio-ht  in  the  morning  and  six  in  the  evening." 

A  certificate  of  service  which  states  that  "there 
was  no  one  in  the  front  room  of  the  attorney's  office  " 
is  not  sufficient,  for  it  implies  that  the  attorney  oc- 
cupied two  or  more  rooms,  and  might  have  been  at 
the  time  in  one  of  the  other  rooms.  If  this  were  the 
fact,  the  notice  ought  to  have  been  served  on  him  or 
on  his  clerk,  etc.,  if  he  were  absent,  and  the  clerk 
were  in  one  of  the  rooms  of  the  office.  But  the  de- 
posit of  the  copy  notice  in  a  letter-box  attached  to 
the  door  of  the  attorney's  office  in  which  he  was  ac- 
customed to  receive  his  letters  and  mail,  was  held  to 
be  a  deposit  in  a  conspicuous  place  in  his  office. 
Usually  the  deposit  should  be  upon  his  table  or  desk 
at  which  he  sits  when  in  the  office,  and  in  front  of 
his  seat,  with  his  name  indorsed  on  the  copy  so  as  to 
attract  his  attention  to  it  when  he  comes  in. 

When  service  is  made  in  this  manner,  which  is  not 
infrequent,  the  affidavit  of  service  must  set  out  fully 
the  probative  facts  from  which  the  court,  in  the  ex- 
ercise of  its  judicial  functions,  may  determine 
whether  the  place  where  the  notice  was  left  was  "  a 
conspicuous  place  in  the  office."^ 

'Code,  §  376;  Gelston  v.  Swartout.  i  Johns.  Cas.  137;  Anon.,  18 
Wend.  578;  Jackson  v.  Gardner,  3  Caines.  95 ;  Doll  v.  Smith,  32 
Cal.  43;  Elder  v.  Trevert,  18  Nev.  446;  January  v.  Superior  Court, 
73  Cal.  537. 


When  Office  not  Open.  351 

Where  Attorney's  Office  is  not  Open. 

Where  the  attorney's  office  is  not  open,  so  as  to 
admit  of  service  tlierein,  then  service  may  be  made 
by  leaving  it  at  the  attorney's  residence  with  some 
member  of  his  family  over  the  age  of  fifteen  years. 

The  courts  invariably  hold  that  when  the  attorney's 
office  is  locked  so  that  access  cannot  be  had  to  it, 
the  service  is  to  be  made  in  some  one  of  the  other 
modes  pointed  out  by  the  statute.  Hence  unlocking 
the  door,  without  the  permission  of  the  attorney,  or 
throwing  the  copy  through  the  open  transom  over 
the  door  of  the  attorney's  office,  have  been  held  not 
valid  service. 

The  service  in  this  case  is  governed  by  the  same 
rules  that  govern  the  service  of  a  summons  by  leav- 
ing a  copy  at  "  the  usual  place  of  abode  of  the  de- 
fendant." See  Fitnam's  Code  Summons,  **  Usual 
Place  of  Abode."^ 

Where  Attorney's  Residence  is  not  Known. 

If  the  attorney's  residence  be  not  known  to  the 
party  who  gives  the  notice,  then  service  may  be 
made  by  putting  the  notice  in  the  post-office,  postage 
prepaid,  directed  to  such  attorney. 

This  provision  of  the  Code  does  not  apply  to  the 
case    of   attorneys    who    reside   at    different    places, 


'  Code,  §  376  ;  Lathrop  v.  Judevins.  2  Cow.  484  ;  Ashiel  v.  Degraw, 
6  Cow.  63;   Corning  v.  Pray,  2  Wend.  626;  Anon.,  18  Wend.  578. 


352  Practice  in  Courts  of  Review. 

between  which    there   is   regular   communication   by- 
mail,  for  which  sqq  post,  "Service  by  Mail." 

It  applies  to  the  case  only  of  attorneys  who  have 
no  known  office  or  place  of  doing  business,  but  who 
dwell  in  the  same  city  or  town,  whose  dwelling- 
place  is  unknown  to  the  person  who  gives  the  notice. 
In  such  case  the  attorney  will  usually  receive  mail 
daily  at  the  post-office,  and  the  Code  provides  for 
service  by  a  deposit  of  the  notice  in  the  post-office, 
as  the  most  likely  mode  of  reaching  him.  In  cities 
which  have  a  mail-carrier  service  there  is  in  the  post- 
office  usually  an  official  known  as  a  "  directory  clerk," 
who  keeps  a  list  of  persons  whose  names  are  not 
found  in  the  street  directory,  and  of  the  place  whereat 
mail  for  them  is  to  be  delivered.  A  letter  incor- 
rectly addressed  to  a  person  within  the  delivery  of 
such  office  will,  in  the  usual  course  of  business,  be 
placed  in  his  hands  to  be  correctly  addressed  and 
thus  reach  the  person  for  whom  it  is  intended  in  the 
course  of  delivery  by  the  carrier. 

To  justify  service  in  this  mode,  service  in  any  other 
mode  prescribed  by  the  Code,  in  the  preceding  parts 
of  this  section,  must  be  impracticable.  It  is  only 
when  personal  service,  or  service  at  the  office,  or  at 
the  residence,  is  impracticable,  that  service  through 
the  post-office  is  permissible.  Hence  the  affidavit  of 
service  must  negative  the  practicability  of  service  in 
all  of  the  other  modes  prescribed,  and  must  affirma- 
tively show  want  of  knowledge  of  the  attorney's  resi- 


On  Party.  353 

dence,  with  due  inquiry  in  the  proper  quarters  tor 
such  residence. 

Deposit  in  a  United  States  mail  street  letter-box, 
or  delivery  to  a  United  States  letter-carrier,  on  his 
route,  is  held  to  be  equivalent  to  putting  it  in  the 
post-office  proper.^ 

The  affidavit  of  service  should  also  affirmatively 
show  that  the  postage  was  prepaid  on  the  envelope 
that  contained  the  notice.  In  the  absence  of  such 
statement  it  will  be  fairly  implied  that  the  letter  was 
not  postpaid." 

When  so  deposited  the  courts  hold  that  the  letter 
is  at  the  risk  of  the  person  to  whom  it  is  addressed, 
it  being  presumed  that  it  is  delivered  in  due  course 
of  the  mail  and  received  by  the  party  to  whom  it  is 
addressed.  Such  deposit  is  prima  facie  evidence  of 
its  receipt  by  him. 

Service  on  a  Party  to  the  Action. 

Unlike  the  Codes  of  other  States,  the  Colorado 
Code  permits  the  service  of  notices  of  motion  and 
other  papers  in  an  action  or  proceeding  to  be  made 
on  a  party.  Service  of  the  notice,  if  made  on  a  party 
to  the  action  or  proceeding,  may  be  made  by  leaving 
such  notice  or  other  paper  at  his  residence  between 
the  hours  of  eig-ht  in  the  mornino-  and  six  in  the 
evening,  with  some  member  of  his  family  over  the 

'Code,  §  376;  Abb.  Tr.  Ev.  433,434;  Bank  v.  De  Groot,  7  Hun 
(N.  Y.),  210;  Pearce  V.  Langfit,  loi  Penn.  St.  507;  Burns  v.  Bank, 
12  Colo.  539;  Morton  v.  Morton,  16  Colo.  358. 

45 


354  Practice  in  Courts  of  Review. 

age  of  fifteen  years  ;  or,  if  his  residence  be  not 
known,  by  putting  the  same  inclosed  in  an  envelope 
into  the  post-office,  postage  prepaid,  directed  to  such 
party,  ^ 

Service  on  a  party  is  governed  by  the  same  rules 
as  are  hereinbefore  given  for  service  on  his  attor- 
ney. Such  service  may  be  either  "  personal,"  by  giv- 
ing it  to  him  in  person,  or  "by  leaving  it  at  his  resi- 
dence," if  it  be  known,  or  "  by  depositing  it  in  the 
post-office,"  if  it  be  not  known.  See  ante,  "  Where 
attorney's  residence  is  not  known." 

Semble.  Where  the  notice  is  to  be  made  on  a  cor- 
poration, party  to  the  action,  service  cannot  be  given 
under  the  first  part  of  this  provision,  but  it  may  be 
given  by  depositing  the  notice  in  the  post-office. 

Service  by  "Mail" — When  Authorized. 

Service  of  a  notice  and  motion  may  be  made  "  by 
mail,"  when  the  person  giving  the  notice,  and  the 
person  to  whom  it  is  desired  to  give  the  notice,  re- 
side at  different  places  between  which  there  is  regu- 
lar communication  by  "  mail." 

"  Mail,"  means  the  delivery  and  carriage  of  letters 
by  public  authority  through  public  post-offices.  In 
the  United  States  it  has  reference  to  the  United 
States  post-offices,  operated  under  the  control  of  the 
Federal  government,  and  does  not  include  private 
post-offices   by  whomsoever  conducted.     The   word 

'  Code,  §  376. 


By  Mail.  355 

"  mailed,"  when  applied  to  a  letter,  means  that  such 
letter  has  been  properly  prepared  for  transmission 
through  the  Federal  post-office,  by  being  fully  pre- 
paid, and  placed  in  the  custody  of  some  servant  of 
the  postal  department,  who  is  charged  with  the 
duty  of  forwarding  the  mail  to  its  proper  destination, 
for  the  purpose  of  being  sent  through  the  mail  to  the 
address  written  on  the  back  of  such  letter. 

The  "  person  "  making  the  service  of  the  notice  is 
the  attorney  or  party  who  gives  the  notice,  not  the 
person  who  delivers  it. 

Service  of  a  notice  "  by  mail  "  is  valid  service  only, 
except  as  hereinbefore  stated  where  the  attorney's  or 
party's  residence  is  unknown,  when  the  attorney  or 
party  who  gives  the  notice  resides  in  a  place,  town 
or  city,  different  from  that  at  which  the  person  to 
whom  the  notice  is  to  be  given  resides.  It  is  also 
essential  that  there  be  regular  communication  by 
mail  between  the  two  places;  that  is,  that  there  is  an 
established  postal  route,  a  stated  arrival  and  de 
parture  of  the  mails,  and  a  regular  post-office,  estab- 
lished under  Federal  authority.^ 

Service  by  Mail — Distance  —  Time. 
Sec.  192.   In  case  of  a  service  through  the  United 
States  post-office,  the  notice  or  other  paper  must  be 
inclosed  in   an  envelope;  be  properly  and  correctly 

'  Renshaw  v.  Triplett,  23  Mo.  220;  Sanderson  v.  Renstedler,  31 
Mo.  485;  Moure  v.  Beese,  35  Cal.  186;  People  v.  A.  D.  T.  Co.,  30  CaL 
186;  Code.  §  377- 


356  Practice  in  Courts  of  Review. 

addressed  to  the  person  for  whom  it  is  intended  by 
his  correct  name ;  must  give  his  correct  post-office 
address  ;  must  be  a  known  United  States  post-office; 
and  all  the  postage  which  is  legally  payable  on  such 
letter  must  be  prepaid  thereon  by  United  States 
postal  stamps.  The  name  of  the  sender  and  his 
residence  or  office  should  be  indorsed  on  such 
envelope,  but  he  should  be  careful  not  to  use  the 
envelope  known  as  a  return  envelope,  requesting  its 
return  in  a  specified  number  of  days. 

The  reason  of  this  is,  that  the  rules  of  the  post- 
office  department  require  that  all  uncalled-for  let- 
ters in  a  post-office,  at  the  expiration  of  thirty  days 
from  the  day  on  which  they  have  been  received  at 
the  office,  shall  be  returned  to  the  sender,  if  his  ad- 
dress is  found  on  the  envelope,  otherwise  such  let- 
ters are  sent  to  the  dead  letter  office  at  Washington, 
D.  C.  If  a  request  for  the  return  of  the  letter  in  a 
less  number  of  days  be  upon  the  envelope,  such  re- 
quest would  insure  a  return  of  the  letter  at  the  time 
requested,  and  the  addressee  may  by  that  means  be 
prevented  from  receiving  the  letter  which  he  might 
receive  if  the  letter  remained  the  thirty  days  allowed 
by  the  rule.  Due  diligence  will  require  the  letter 
to  remain  for  the  thirty  days,  if  not  sooner  delivered 
to  the  addressee. 

The  time  within  which  an  act  is  to  be  done,  as 
provided  by  the  Code,  is  computed  by  excluding  the 
first   day,   that    is,   the    day   on   which    the  letter    is 


By  Mail.  357 


mailed,  and  including  the  last  day  of  the  time  speci- 
fied. But  if  the  last  day  be  a  Sunday,  or  a  legal  holi- 
day, the  next  day,  if  not  a  legal  holiday,  shall  be  the 
last  day  of  the  time  specified. 

The  requirement  that  the  last  day  be  not  counted,  if 
it  be  a  Sunday  or  legal  holiday,  applies  only  when 
some  act  is  to  be  done  on  such  day.  And  when  a 
Sunday  follows  a  holiday,  or  a  holiday,  a  Sunday 
both  days  are  to  be  excluded  in  the  count  of  the 
number  of  days.  And  when  the  act  is  required  to 
be  performed  within  a  certain  time,  such  time  is  com- 
puted by  entire  days.  Parts  or  fractions  of  days  are 
not  usually  taken  into  consideration. 

In  the  case  of  a  service  of  a  notice  or  other  paper 
by  "  mail,"  the  Code  prescribes  that  the  time  of 
the  service  must  be  increased  one  day  for  each 
twenty-five  miles  of  distance  between  the  post-office 
in  which  the  letter  is  deposited  for  its  transmittal  to 
the  addressee,  and  the  post-office  at  which  it  is  to  be 
delivered  to  him.  This  means  that  if  under  the  Code 
three  days'  notice  is  prescribed,  and  the  post-office 
at  which  the  addressee  receives  such  letter  is  ^distant 
one  hundred  miles  from  the  post-office  in  which  it  is 
mailed,  service  of  the  notice  will  be  complete  only 
after  the  expiration  of  seven  days.  But  this  addi- 
tional time  can  be  extended  no  more  than  forty  days.' 

'Code,  §  378;  Robinson  v.  Foster,  12  Iowa,  186;  Mills'  Ann. 
Stat.,  §  2127  ;  Cornell  v.  Moulton,  3  Denio  (N  Y.),  15  ;  Columbia  T. 
Road,  10  Wend.  (N.  Y.)  423  ;  Stebbins  v.  Anthony,  5  Colo.  348  ; 
Evans  v.  Bowers,  13  Colo.  511,  and  authorities  cited. 


358  Practice  in  Courts  of  Review. 

Presumption  from  a  Proper  Mailing  of  Notice. 

Sec.  193.  The  rule  is  well  settled,  that  if  a  letter, 
which  is  correctly  addressed  and  properly  prepaid  by 
stamps,  is  shown  to  have  been  deposited  in  the 
post-office,  or  in  a  letter-box  provided  for  that  pur- 
pose by  the  postal  authorities,  or  given  to  a  letter 
carrier  on  his  route,  for  the  purpose  of  being  mailed, 
from  the  known  course  of  business  in  the  postal 
service,  it  will  be  presumed  that  such  letter  reached 
its  destination  within  the  regular  time  required  lor 
its  transportation,  and  was  delivered  to  the  person  to 
whom  it  was  addressed.  This  presumption,  which  is 
ov\y  prima  facie,  and  is  subject  to  rebuttal,  is  founded 
on  the  presumption  that  the  post-of^ce  ofificials,  who 
are  sworn  officers,  have  performed  the  duties  re- 
quired of  them  by  the  postal  laws  and  regulations. 
Proof  that  the  party  received  the  notice  is  not  re- 
quired. All  that  is  necessary  is  to  show  that  the 
person  resided  at  the  place  to  which  the  letter  was 
addressed  ;  that  the  envelope  was  correctly  addressed 
to  such  place  and  to  him  by  his  correct  name  ;  that 
all  the  postage  required  to  be  paid  thereon  was  pre- 
paid by  stamps,  and  that  such  prepaid  letter  was  de- 
posited in  a  Federal  post-office,  or  in  a  United  States 
letter-box,  or  delivered  to  a  United  States  letter- 
carrier  to  be  mailed. 

When  such  proof  is  made,  it  will  then  rest  on  the 
other  party  to  show  its  non-receipt  by  him.      So,  if 


By  Mail.  359 

the  addressee  have  changed  his  place  of  residence, 
and  has  given  due  notice  of  the  change  of  his  post- 
office  address  to  the  postmaster  of  the  former  place 
of  residence,  with  a  request  to  forward  his  mail  to 
such  new  address,  as  the  postal  laws  provide  for  a 
compliance  with  such  request,  the  same  presumption 
as  to  receipt  of  the  letter  arises.^ 

Until  due  proof  of  its  non-receipt  by  him,  the 
court  will  act  on  these  presumptions  and  proceed  to 
hear  and  determine  the  motion  and  grant  or  deny 
the  order  applied  for,  in  the  same  manner  as  if  he  re- 
ceived the  notice,  and  neglected  to  appear  in  answer 
to  it. 

Proof  of  Service  of  Notice. 

Sec.  194.  Proof  of  service  of  the  notice  may  be 
made  by  the  affidavit  of  the  person  who  serves  it. 
This  affidavit  must  show  affirmatively  that  every  re- 
quirement of  the  statute  prescribing  the  mode  of  ser- 
vice in  that  case  has  been  strictly  complied  with. 
Nothing  necessary  to  show  a  due  service  ought  to  be 
omitted.  In  serving  a  notice  by  leaving  it  at  the 
attorney's  office,  it  should  show  the  absence  of  the 
attorney  at  that  time,  and  that  it  was  left  with  some 
person  then  in  charge  of  his  office,  or  in  a  "  conspicu- 
ous place  in  the  office."      Merely  stating  that  he  left 

'  Callan  v.  Gaylord.  3  Watts  (Pa.),  321  ;  Tannery.  Hughes,  53  Penn. 
St.  289;  Howard  V.  Daly,  61  N.  Y.  362;  Huntley  v.  Whittier,  105 
Mass.  392;  Gaflfney  v.  Bigelow,  3  Abb.  N.  C.  311;  Renshaw  v. 
Triplett,  23  Mo.  220;  Sanderson  v.  Renstedler,  31  Mo.  485;  2 
Whart.  Ev.  1328  ;   i  Greenl.  (12th  ed.)  40,  573a. 


360  Practice  in  Courts  of  Review. 

a  true  copy  at  the  office  for  the  attorney  is  not  suffi- 
cient. 

So,  where  the  service  is  by  mail  the  affidavit  must 
state:  First,  that  the  attorneys  reside  at  different 
places,  between  which  there  is  regular  communica- 
tion by  mail;  and  Secondly,  the  facts  of  depositing 
the  notice  in  the  post-office  in  an  envelope,  on  which 
all  postage  legally  chargeable  was  prepaid  by  stamps.^ 

Forms  of  Proofs  of  Service. 

Sec.  195.  Where  the  notice  is  given  to  the  attor- 
ney or  party  in  person  an  acceptance  or  admission  of 
due  service  in  writing  may  frequently  be  obtained  of 
him.  This  acceptance  or  admission  should  be  writ- 
ten at  the  foot  of  the  notice  and  be  signed  by  the 
party  or  attorney.     It  may  be  in  the  following  form : 

/  admit  due   and  legal  service  of  the  above  notice  and  papers 
thereto  attached,  this day  of ,  18 — . 


Attorney  for  . 

Or 

Received  a  copy  of  the  above  notice  and  acconipanyitig  papers  this 
day  of ,  18 — . 


Attorney  for  ■ 


An  admission  of  due  service  is  an  admission  that 
the    full  time    for  giving   the    notice    prescribed    by 


1  Callado  v.  A.  P.  T.  Co.,  49  Cal.  511;    Doll  v.  Smith,  32  Cal.  475. 


Personal  Service.  361 

statute  has  been  given.  But  when  the  word  "due" 
is  omitted,  the  admission  does  not  waive  any  irregu- 
larities as  to  time,  but  merely  admits  the  service  in 
the  proper  manner.  The  genuineness  of  the  attor- 
ney's signature  will  be  presumed  until  the  contrary  is 
shown  by  affidavit. 

Where  the  service  is  merely  irregular,  the  courts 
will  usually  require  an  affidavit  that  the  notice  was 
not  actually  received  by  the  objecting  party.^ 

The  second  form  above  is  the  better  one,  since  it 
merely  acknowledges  the  receipt  of  the  papers  and 
leaves  open  every  other  question,  if  the  attorney  de- 
sire to  raise  any,  as  to  sufficiency  of  notice  or  of 
the  service. 

Affidavit  of  Personal  Service. 

State  of  Colorado,  ) 

County  of .  f 

A.  B.,  being  duly  s^aorn,  on  his  oath,  says,  that  he  did,   on  the 
day  of ,  1 8 — ,  at  the  county  and  State  above  named,  per- 


sonally deliver  to  C  D ,  the  person  in  said  notice  7iamed,  a  true  copy 
vf  the  annexed  notice  and  of  the  papers  thereto  attached. 

{Jurat.)  {Signature.) 

If  Left  at  Office. 

After  the  words,  ''''county  and  State  above  named,''  ''''personally 
deliver  to  C.  D.,  clerk  of  the  person  fiamed  iti  such  notice,  then  in  his 
office,  said  attorney  being  absent  therefrom,  a  true  copy,"  etc.;  or  '^  to 
a  person  then  in  charge  of  his  office." 


Tallman  v.  Barnes,  12  Wend.  (N.  Y.)  228;  Eames  v.  Sitt,  2  Hill 
(N.  Y.),  363;  Ripley  v.  Burgess,  2  Hill    (N.  Y.),  361. 

46 


362  Practice  in  Courts  of  Review. 

If  no  One  in  the  Office. 

Did  personally  Icaz^e  on  the  table  in  the  office  of  C.  D.  named 
therein,  at  which  he  usually  sits,  that  being  a  conspicuous  place 
therein,  no  one  being  at  that  time  in  said  office,  a  true  copy,  etc. 

Service  by  Mail. 

(  Venue. ) 

A.  B.,  being  duly  sworn,  on  his  oath,  says,  that  F.,  who  is  attor- 
ney for  the  plaintiff  i?i  the  action  in  which  this  notice  is  served,  re- 
sides at  ( )  in  the  county  of y  Second,  that  G.,  who  appears 

as  attorney  of  record  for ,  resides  at in  the  county  of ; 

Third,  that  there  is  regular  communication  between  said  places  by 
United  States  mail  ;  Fourth,  that  affiant,  by  the  direction  of  said  F. , 
did  on  the da\  of ,  18 — ,  deposit  in  the  United  States  post- 
office  at a  true  copy  of  the  notice  hereto  attached,  ivith  the  ac- 
companying papers  inclosed  in  an  envelope  securely  sealed,  addressed 
to  [here  give  address  as  on  envelope^  and  that  all  postage  on  said 
envelope  was  thereon  duly  prepaid  by  stamps. 

( Jurat. )  (  Signature. ) 

The  motion,  notice  and  affidavit  should  be  filed  in 
the  clerk's  office,  with  the  papers  in  the  action. 

Hearing  of  Motion. 

Sec.  196.  Before  the  motion  is  called  for  a  hearing 
on  its  merits  all  objections  to  the  manner  of  the  ser- 
vice of  the  notice  or  to  its  sufficiency  should  be 
called  to  the  attention  of  the  court,  as  otherwise  such 
objections  will  be  waived,  if  the  party  served  appear 
and  make  no  objection  to  the  service  or  to  the  notice. 
The   moving  party  cannot   safely  proceed  until   the 


Hearing  of  Motion.  363 

notice  has  been  duly  served  the  time  prescribed  by 
the  statute. 

In  the  courts  of  review,  the  usual  practice  being  to 
have  a  resident  attorney  at  the  seat  of  government  to 
attend  to  the  case,  it  will  be  only  on  rare  occasions 
that  service  of  notice  by  mail  will  be  required.  But 
if  the  attorneys  of  the  parties  are  residents  of  other 
counties  than  Arapahoe,  service  of  notice  by  mail 
will  be  required,  and  it  seems  that  the  Code  pro- 
visions in  relation  thereto  apply,  especially  as  the 
Supreme  Court  has  promulgated  no  other  rules  in 
relation  thereto. 

At  the  time  mentioned  in  the  notice  if  the  court 
be  sitting,  or  at  the  next  sitting  thereafter,  the  mover 
of  the  motion  calls  the  attention  of  the  court  to  the 
motion,  and  if  the  other  party  be  present  and  do  not 
for  any  sufficient  cause  require  a  postponement  of 
the  hearing,  the  motion  is  heard  by  the  court. 
Usually  no  briefs  are  to  be  filed  on  the  motion,  but 
there  are  sometimes  cases  of  such  a  character  as 
that  the  court  will  ask  the  parties  to  prepare  and  file 
briefs  in  support  of  their  respective  views  on  the 
point  in  controversy.  The  party  moving  should 
read  his  written  motion,  as  the  same  has  been  filed 
with  the  clerk,  to  save  a  misunderstanding  of  its  ob- 
ject by  the  court.  The  afifidavits  may  also  be  read, 
though  in  most  cases  the  affidavits  are  looked  into  by 
the  court,  when  considering  the  motion  in  consulta- 
tion of  the  judges,  and  are  not  usually  read  in  open 


364  Practice  in  Courts  of  Review. 

court.  There  are  cases  of  minor  importance,  in 
which  the  court  denies  the  application  without  con- 
sultation in  chambers,  either  because  the  application 
is  not  made  in  proper  time  or  on  tenable  grounds,  or 
grants  it  because  it  is  properly  grantable. 

In  the  trial  courts,  if  the  motion  is  granted  or  de- 
nied, the  party  aggrieved  may  except  to  the  decision 
of  the  court  and  tender  a  bill  of  exceptions.  In  such 
case  he  should  incorporate  into  such  bill  the  motion 
and  all  affidavits  in  support  thereof.  But  in  the 
courts  of  review  no  exception  will  lie,  as  there  is  no 
review  of  the  action  of  the  court,  except  on  a  motion 
for  a  "rehearing." 


License  to  Practice.  365 


CHAPTER  XIII. 

Admission  of  Attorneys. 

Sec.  197.  License  from  Supreme  Court. 

198.  Qualifications  to  obtain  license. 

199.  Additional  requirement  by  the  Supreme  Court. 

200.  Standing  committee  for  each  district. 

201.  Oath,  form  of. 

202.  Roll  of  attorneys,  what  to  state. 

203.  Attorneys  from  other  States,  how  admitted. 

204.  Striking  name  from  the  roll. 

205.  Procedure  under  foregoing  provisions. 

206.  Effect  of  disbarment. 

207.  Readmission  of  disbarred  attorney. 

License  from  Supreme  Court  Necessary. 
Sec.  197.  No  person  shall  be  permitted  to  practice 
as  an  attorney  or  counselor-at-law,  *  *  *  in 
any  court  of  record  within  this  State  *  *  *  with- 
out having  previously  obtained  a  license  for  that  pur- 
pose from  two  of  the  justices  of  the  Supreme  Court, 
which  license  shall  constitute  the  person  receiving 
the  same  an  attorney  and  counselor-at-law,  etc. 

Qualifications  to  Obtain  License. 
Sec.  198.   No  person  shall  be  entitled  to  receive  a 
license  as  aforesaid  until  he  shall  have  obtained  a  cer- 
tificate from  the  court  of  some   county  of  his  good 


366  Practice  in  Courts  of  Review. 

moral  character.  Also  a  certificate  from  one  or  more 
reputable  counselors-at-law  that  he  has  been  engaged 
in  the  study  of  law  for  two  successive  years  prior  to 
the  making  of  such  application. 

The  certificate  of  good  moral  character  is  usually 
procured  from  a  County  or  District  Court,  sitting  in 
the  county,  in  which  the  applicant  resides,  and  is 
made  in  open  court,  on  an  application  of  an  attorney 
or  other  person  to  the  court  for  such  certificate  ; 
and  his  statement  that  the  applicant  is  of  good  moral 
character.  In  some  States  a  prior  notification  of  in- 
tention to  apply  to  the  court  for  such  certificate  is 
required  by  law  or  rule  of  court  to  be  published  in  a 
public  newspaper  of  applicant's  residence  for  a  period 
of  three  or  more  weeks,  but  such  rule  does  not  exist 
in  Colorado. 

The  certificate  is  issued  by  the  court,  under  the 
hand  of  its  clerk  and  the  seal  of  the  court,  and  de- 
livered to  the  applicant. 

The  certificate  of  two  years'  study  is  in  many  cases 
a  mere  matter  of  form,  as  the  statute  does  not  re- 
quire specifically  that  the  applicant  have  studied  in 
the  office  of  the  attorney   who   gives  the  certificate. 

Additional  Requirement  Prescribed  by  Supreme 

Court. 

Sec.  199.  By  rule  49  of  the  Supreme  Court  an 
additional  qualification  to  those  prescribed  by  statute 


License  to  Practice.  367 

is  required  of  each  applicant  for  license  to  practice 
as  an  attorney  in  Colorado.      It  is  : 

"  No  person  shall  be  admitted  to  practice  law  in 
this  State  who  shall  not  have  taken  and  subscribed 
an  oath  that  he  is  a  citizen  of  this  State  ;  also  that 
he  will  commence  the  practice  of  law  therein  within 
three  months  from  the  date  thereof  and  make  the 
same  his  permanent  and  usual  occupation." 

This  rule  has  been  adopted  chiefly  as  an  earnest 
of  the  sincerity  of  the  person  applying  for  a  license, 
and  to  prevent  the  granting  of  licenses  to  parties 
from  other  States,  who  seek  the  license  from  the 
Supreme  Court  of  Colorado  for  the  sole  purpose  of 
askino-  admission  to  the  bar  of  the  State,  of  which 
they  are  actual  residents,  upon  the  basis  of  the  license 
obtained  in  Colorado. 

Rule  49  further  prescribes  that  no  person  shall  be 
admitted  to  practice  in  this  State,  unless  he  further 
takes  an  oath  that  he  has  never  been  disbarred  by 
any  court  of  record  in  which  he  has  heretofore  prac- 
ticed and  has  never  been  convicted  of  a  felony. 
This  provision  was  adopted  on  February  14,  1890,  to 
stop  the  applications  of  attorneys  from  other  States, 
who  have  been  disbarred  in  their  States,  or  who  have 
been  convicted  of  felony  therein,  and  who  have  re- 
moved to  the  State  of  Colorado  for  the  purpose  of 
practicing  as  attorneys  therein. 


368  Practice  in  Courts  of  Review. 

Standing  Committee  for  each  Judicial  District. 

Sec.  200.  It  shall  be  the  duty  of  the  Supreme 
Court  to  appoint  a  standing  committee  of  three 
attorneys-at-law  for  each  judicial  district  of  this  State, 
whose  duty  it  shall  be  to  examine  all  applicants  for 
license  as  aforesaid ;  and  if,  upon  such  examination,  a 
majority  of  such  committee  shall  deem  the  applicant 
qualified  to  practice  as  an  attorney  and  counselor-at- 
law  in  the  courts  of  this  State,  they  shall  sign  a  cer- 
tificate to  that  effect  and  transmit  the  same  to  the 
clerk  of  the  Supreme  Court.^ 

No  fee  is  prescribed  by  law  to  be  paid  the  examin- 
ing committee,  and  its  labor  in  conducting  this  ex- 
amination is  wholly  gratuitous.  In  the  case  of 
People  V.  Betts,  the  Supreme  Court  for  the  first  time 
was  called  upon  to  construe  the  foregoing  section. 
In  that  case  it  held  :  First.  That  the  applicant  for 
admission  must  apply  to  the  committee  of  his  own 
judicial  district,  and  that  it  is  not  permissible  for  him 
to  apply  to  the  committee  of  any  other  district.  If 
he  believes  that  a  majority  of  the  members  of  the 
committee  of  his  district  are  hostile  to  him  and  will 
not  treat  him  fairly  upon  an  examination,  or  give  him 
a  fair  report  of  qualification  to  admission,  he  must 
apply  to  the  Supreme  Court  for  the  proper  remedy. 
This  it  will  give  in  cases  requiring  it,  by  the  appoint- 
ment of  a  special  committee  for  his  examination,  or 

'  3  Mills'  Stat.,  §§  196,  197,  198. 


Oath.  369 

by  directing  his  examination  by  the  committee  of 
some  adjacent  district. 

Second.  That  a  second  application,  after  rejection 
by  the  committee  of  his  district,  to  a  committee  of 
another  district  is  not  permissible,  except  on  applica- 
tion to  the  court. 

Third.  That  an  examination  by  an  individual  com- 
mitteeman is  not  a  compliance  with  the  statute.  Two 
at  least  of  the  committee  should  be  present  and 
conduct  the  examination.  The  acceptance  and  in- 
dorsement of  the  examination,  conducted  by  one 
only,  by  the  other  committeemen  is  not  sufficient.^ 

Oath  —  Form  of. 

Sec.  201.  The  following  oath  of  office  shall  be 
administered  to  every  attorney  and  counselor-at-law 
before  they  subscribe  the  respective  rolls,  to-wit : 

"  1  swear  (or  affirm)  that  I  will  in  all  things  faith- 
fully execute  the  duties  of  an  attorney  and  counselor- 
at-law,  according  to  the  best  of  my  understanding 
and  abilities."^ 

The  foregoing  oath  may  be  taken  before  any 
officer,  who  is  by  law  authorized  to  administer  oaths 
in  the  State  of  Colorado,  and  is  usually  found  on  the 
face  of  the  license.  After  the  oath  has  been  taken 
and  subscribed  and  properly  authenticated  by  the 
officer  who  administered  it,  the  license  is  then  re- 
turned to  the  clerk  of  the  Supreme  Court  for  a  cer- 

2  The  People,  ex  rei.  Betts,  7  Colo.  453. 
47 


370  Practice  in  Courts  of  Review. 

tificate  of  enrollment,  under  the  provisions  of  section 
72  of  General  Statutes, 

Roll  of  Attorneys  —  What  to  State. 

Sec.  202.  It  shall  be  the  duty  of  the  clerk  of  the 
Supreme  Court  to  make  and  keep  a  roll  or  record, 
stating  at  the  head  or  commencement  thereof  that 
the  persons  whose  names  are  therein  written  have 
been  regularly  licensed  and  admitted  to  practice  as 
attorneys  and  counselors-at-law  within  this  State, 
and  that  they  have  duly  taken  the  oath  to  support 
the  Constitution  of  the  United  States  and  the  Con- 
stitution of  this  State,  and  also  the  oath  of  office,  as 
prescribed  by  law,  which  shall  be  certified  and  in- 
dorsed on  said  license. 

And  no  person  whose  name  is  not  subscribed  to 
or  written  on  such  roll,  with  the  day  and  year  when 
the  same  was  subscribed  thereto,  or  written  thereon, 
shall  be  suffered  or  admitted  to  practice  as  an  attor- 
ney or  counselor-at-law  within  this  State,  etc.^ 

Attorneys  who  have  been  Admitted  to  Prac- 
tice BY  the  Courts  of  Other  States — How 
Admitted. 

Sec.  203.  Any  person  producing  a  license  from 
any  court  of  record,  or  a  duly  authenticated  copy  of 
the  record  of  any  court  of  record  of  the  United 
States,  showing  that  he  has  been  regularly  admitted 

'  Mills'  Ann.  Stat.,  §§  199,  200. 


Admission  of.  371 

an  attorney-at-law  in  any  court  of  record  in  the 
United  States;  and  it  appearing  to  the  satisfaction 
of  the  judges  of  the  Supreme  Court,  or  of  a  majority 
of  them,  that  he  is  a  man  of  good  moral  character, 
he  shall  be  licensed  and  admitted  to  practice  in  all 
the  courts  of  the  State  without  examination.  Per- 
sons producing  such  evidence  of  their  admission  as 
attorneys-at-lavv  in  other  States  or  Territories  may 
make  application  to  the  judges  of  the  Supreme  Court 
in  vacation,  and  two  or  more  of  said  judges  shall 
issue  a  license  to  such  person  in  the  same  manner  as 
if  such  application  was  made  to  the  Supreme  Court. 
In  addition  to  the  foregoing  statute,  the  Supreme 
Court  has  adopted  the  following  rule : 

"  No  person  shall  be  admitted  to  practice  as  an 
attorney  and  counselor-at-law  upon  evidence  that  he 
has  been  admitted  to  the  bar  of  another  State  or 
Territory,  if  at  the  time  of  his  admission  to  the  bar 
of  such  State  or  Territory  he  was  a  citizen  of  this 
State."  1 

Hence  to  be  admitted  to  practice  in  courts  of 
record  of  this  State  it  is  required : 

First.  That  the  applicant  be  a  person  of  good 
moral  character, and  that  he  produce  to  the  Supreme 
Court  a  properly  authenticated  certificate  thereof 
from  some  court  of  record  within  this  State. 

Second.  That  he  have  studied  for  at  least  two 
years,  and  produce  to  the  Supreme  Court  the  certifi- 

'  Mills' Ann.  Stat.,  §  206.     Rule  Supreme  Ct.  48. 


372  Practice  in  Courts  of  Review. 

cate   of  one  or  more  reputable  counselors-at-law  of 
this  State,  to  that  effect. 

Third.  If  a  resident  of  this  State,  and  he  have 
not  previously  been  admitted  in  some  other  State  or 
Territory,  that  he  have  passed  a  successful  examina- 
tion by  the  standing  committee  of  the  judicial  dis- 
trict of  this  State  in  which  he  resides. 

Fourth.  That  he  have  taken  an  oath  to  support 
the  Constitution  of  the  United  States  and  of  the 
State  of  Colorado ;  the  oath  of  office  prescribed  by 
General  Statutes,  section  78,  and  the  oath  required 
by  the  rules  of  the  Supreme  Court. 

Fifth.  That  the  oath  of  office  be  taken  before  and 
be  certified  by  some  person  duly  authorized  to  admin- 
ister oaths  in  this  State,  and  that  it  be  indorsed  on 
the  certificate  of  license. 

Sixth.  That  the  attorney's  name  has  been  enrolled 
on  the  attorney's  roll. 

Until  each  and  every  one  of  these  things  are  done 
the  applicant  is  not  permitted  to  practice  in  a  court 
of  record  of  this  State,  and  is  not  technically  an 
attorney-atlaw. 

If  he  have  been  admitted  to  practice  by  a  court  of 
record  of  another  State,  the  examination  by  the 
standing  committee  of  his  district  is  dispensed  with, 
but  he  must  swear  that  he  has  never  been  disbarred, 
and  never  convicted  of  a  felony,  and  if  he  were  a 
citizen  of  this  State  at  the  time  of  his  admission  in 
another  State,  the  license  there  granted  will  not  en- 


Striking  from  the  Roll.  373 

title  him  to  admission    in   this  State,  except   on   the 
conditions  that  apply  to  residents  of  this  State. 

Power  of   Supreme    Court    to    Strike    Name   of 
Attorney  from  the  Roll. 

Sec  204.  The  justices  of  the  Supreme  Court  in 
open  court  shall  have  power,  at  their  discretion,  to 
strike  the  name  of  any  attorney  or  counselor-at-law 
from  the  roll  for  malconduct  in  his  office.^ 

In  the  case  of  People,  ex  rel.  v.  Green,  an  attorney, 
against  whom  proceedings  for  disbarment  were  in- 
stituted, the  Supreme  Court  comments  upon  the 
above  statute  and  says  : 

"  The  statute  not  only  vests  this  court  with  a  dis- 
cretion which  may  be  exercised,  but  by  implication 
it  enjoins  a  solemn  duty  upon  the  court,  which  must 
be  exercised  in  a  proper  case,"  and  quotes  the  words  of 
Chief  Justice  Marshall,  in  Ex  parte  Burr,  9  Wheaton, 
page  529  :  "  This  discretion  ought  to  be  exercised 
with  great  moderation  and  judgment,  but  it  must  be 
exercised." 

In  a  subsequent  case  against  the  same  defendant, 
whose  name  had  been  at  a  period  subsequent  to  the 
first  decision  restored  to  the  rolls,  the  court  cites  the 
following  and  adopts  it  in  its  opinion  : 

"  An  attorney  is  liable  to  be  removed  from  office 
by  the  court  for  sufficient  reason  and  on  proper  show- 

'  Mills'  Stat.,  §  200. 


374  Practice  in  Courts  of  Review. 

ing.  This  reason  and  this  showing  are  not  necessarily 
limited  to  criminal  offenses,  or  to  an  act  which  would 
create  a  civil  liability.  In  the  case  of  an  attorney  of 
this  court,  he  may  be  removed  from  his  office  of 
attorney  absolutely  or  for  a  limited  period  of  time,  or 
in  the  common  phrase,  may  be  suspended  or  dis- 
barred for  any  matter  or  thing  proved  against  him 
which  shows  that  he  is  unfit  to  be  permitted  to  prac- 
tice in  the  court  as  one  of  its  officers." 

This  unfitness  may  be  shown  by  his  guilt  of  a  crime, 
as  theft,  murder,  burglary.  It  may  also  be  shown  by 
proof  of  such  bad  moral  character  as  is  inconsistent 
with  such  an  honorable  office.  It  may  be  shown  by 
specific  acts  done  in  connection  with  his  business  in 
the  court  or  out  of  it,  if  it  be  in  the  practice  of  the 
duties  of  an  attorney,  which  may  show  him  unfit  to 
be  trusted  as  such,  but  which  are  short  of  any  crim- 
inal offense.^ 

The  statute  further  provides  : 

"  In  all  cases  where  an  attorney  of  any  court  of 
this  State,  or  solicitor  in  chancery,  shall  have  re- 
ceived, or  may  hereafter  receive,  in  his  said  office  of 
attorney  or  solicitor,  in  the  course  of  collection  or 
settlement  of  any  claim  left  with  him  for  collection 
or  settlement,  any  money  or  other  property  belong- 
ing to  any  client,  and  shall,  upon  demand  made  and 
a  tender  of  his  fees  and  reasonable  expenses,  refuse 

'  People,  ex  rel.  v.  Green,  7  Colo.  237 ;  People,  ex  rel.  v.  Green,  9 
Colo.  506. 


Procedure  to  Disbar.  375 

or  neglect  to  pay  over  or  deliver  the  same  to  the  said 
client,  or  to  any  person  duly  authorized  to  receive  the 
same,  it  shall  be  lawful  for  any  person  interested,  to 
apply  to  the  Supreme  Court  of  this  State  for  a  rule 
upon  the  said  attorney  or  solicitor  to  show  cause  at  a 
time  to  be  fixed  by  said  court,  why  the  name  of  said 
attorney  or  solicitor  should  not  be  stricken  from  the 
roll,  a  copy  of  which  rule  shall  be  duly  served  upon 
said  attorney  or  solicitor  at  least  ten  days  previous 
to  the  day  upon  which  said  rule  shall  be  made  re- 
turnable ;  and  if,  upon  the  return  of  said  rule,  it  shall 
be  made  to  appear  to  said  court  that  such  attorney 
has  improperly  neglected  or  refused  to  pay  over  or 
deliver  said  property  or  money  so  demanded  as  afore- 
said, it  shall  be  the  duty  of  said  court  to  direct  that 
the  name  of  such  attorney  or  solicitor  be  stricken 
from  the  roll  of  attorneys  in  said  court." 

Procedure  under  the  Foregoing  Provisions. 

Sec.  205.  Every  attorney,  before  his  name  is  stricken 
off  the  roll,  shall  receive  a  written  notice  from  the 
clerk  of  the  Supreme  Court,  distinctly  stating  the 
grounds  of  complaint  or  the  charges  exhibited  against 
him,  and  he  shall,  after  such  notice,  be  heard  in  his 
defense  and  allowed  reasonable  time  to  collect  and 
prepare  testimony  for  his  justification.^ 

The  procedure  as  followed  in  the  Green  case  first 
above   cited,  was  by  a  petition  addressed  to  the  Su- 


'  Mills'  Ann.  Stat.,  §  201. 


376  Practice  in  Courts  of  Review. 

preme  Court,  reciting  the  facts  upon  which  the  charge 
or  charges  of  malconduct  in  office  were  based,  in 
detail  and  fully,  and  praying  an  investigation  of  the 
same  by  or  under  the  direction  of  the  court.  This 
petition  should  be  presented  at  an  open  session  of 
the  court.  Upon  the  presentation  of  the  petition,  a 
rule  is  entered  by  the  Supreme  Court  upon  the 
accused  attorney,  requiring  him  to  appear  before  the 
court  on  a  day  and  at  a  time  therein  named,  and  show 
cause  why  his  name  should  not  be  stricken  from  the 
roll  for  malconduct  in  his  office  as  an  attorney  of 
the  court. 

The  complaint  should  be  verified  by  the  affidavit 
of  the  party  who  makes  it,  and  should  state  clearly, 
fully  and  as  succinctly  as  possible  to  a  fair  statement, 
all  the  facts  upon  which  the  complainant  relies. 

if  the  complaint  presents  a  prima  facie  case  for 
the  action  of  the  court,  and  a  rule  to  show  cause  is 
granted  by  the  court,  a  copy  of  the  complaint  is  usu- 
ally furnished  to  the  respondent,  that  he  may  either 
demur  thereto,  if  he  deem  the  complaint  insufficient 
to  disbar  or  suspend  him  from  the  practice,  or  an- 
swer, if  the  facts  stated  in  the  complaint  may  be  de- 
nied by  him  under  oath. 

At  the  return  day  of  the  rule,  if  respondent  raise 
an  issue  of  law  only,  the  demurrer  may  be  then 
heard,  or  a  day  appointed  for  argument,  and  time 
given  to  prepare  briefs.  If  an  issue  of  fact  is  raised 
by  the  answer,  the  court  will  appoint  a  day  for  hear- 


Procedure  in  Disbarment.  377 

ing  the  testimony,  or  where  the  witnesses  are  resi- 
dents of  a  distant  part  of  the  State,  direct  the 
testimony  to  be  taken  at  the  next  ensuing  term  of 
the  District  Court,  in  which  they  reside.  The  re- 
spondent may  appear  at  the  taking  of  the  testimony, 
in  person  and  by  attorney,  and  cross-examine  the 
complainant's  witnesses,  and  produce  and  examine 
witnesses  in  his  own  behalf.  He  is  permitted  to 
produce  evidence  not  only  in  justification,  but  also 
in  mitigation,  since  the  court  is  authorized  to  act  in 
a  wise  discretion,  and  is  not  bound  by  the  strict  letter 
of  law  in  framing  its  judgment  in  the  case. 

After  the  evidence  is  heard  by  the  court,  or  sub- 
mitted to  the  court,  when  taken  in  a  distant  part  of 
the  State,  time  is  given  to  submit  briefs  upon  dis- 
puted questions  of  law,  and  oral  argument  may  be 
heard,  if  asked  in  compliance  with  the  rules  of  the 
court. 

After  a  decision  is  given  by  the  court  a  rehearing 
may  be  applied  for  as  in  other  cases. 

In  the  class  of  cases  embraced  in  section  74  of 
General  Statutes,  the  complaint  should  specifically 
show  every  fact  necessary  to  establish  the  delin- 
quency which  that  section  is  intended  to  punish. 

In  the  case  of  People  v.  Ryalls,  which  was  under 
that   section,  the  court  says: 

"  It  has  been  evidently  assumed  in  the  present  and 
several  similar  cases  recently  brought  into  this  court, 

that  the  statute  mentioned  was  framed  to  aid  clients  in 

48 


378  Practice  in  Courts  of  Review. 

collecting  moneys  thus  wrongfully  withheld  by  their 
attorneys.  But  we  do  not  conceive  that  the  statute 
referred  to  was  adopted  for  the  purpose  of  affording 
an  additional  private  remedy  for  the  collection  of  the 
moneys  mentioned.  In  our  opinion,  the  principal 
object  of  the  Legislature  was  to  place  in  the  hands 
of  this  court  an  additional  power,  whereby  the  pro- 
fession may  be  purged  of  unworthy  members  and 
litigants  be  protected  from  impositions  practiced  by 
such  persons." 

Hence  in  that  case,  notwithstanding  that  respond- 
ent paid  over  the  money  wrongfully  withheld,  the 
court  refused  to  permit  the  case  to  be  dropped  and 
disbarred  the  respondent.^ 

It  also  appears  that  in  that  class  of  cases  the  Su- 
preme Court  will  not  permit  the  complaint  to  be 
withdrawn  or  discontinued  on  payment  of  the  money 
alleged  to  have  been  wrongfully  withheld,  for  the 
reason  that  a  paying  over  does  not  relieve  the  delin- 
quent attorney  of  the  charge,  and  the  making  of  such 
a  charge  may  be  used  in  some  cases  as  a  means  of 
compelling  the  payment  of  an  unjust  and  wrongful 
demand  by  him,  as  a  lesser  evil  than  incurring  the 
expense,  annoyance  and  trouble  incident  to  the  de- 
fense in  the  Supreme  Court,  even  when  he  has  a  full 
and  perfect  defense  to  the  claim. 

'  People,  ex  rel.  v.  Ryalls,  8  Colo.  332. 


Effect  of  Disbarment.  379 

Effect  of    Disbarment. 

Sec.  206.  Any  attorney,  whose  name  shall  at  any 
time  be  stricken  from  the  roll,  by  order  of  the  court 
in  the  manner  aforesaid,  shall  be  considered  as 
though  his  name  had  never  been  writtten  thereon.^ 

Hence  from  the  time  that 'his  name  is  stricken 
from  the  roll  he  is  no  longer  permitted  to  practice 
as  an  attorney  and  counselor-at-law,  or  to  commence, 
conduct  or  defend  any  action,  in  which  he  is  not 
either  a  plaintiff  or  a  defendant  thereto,  either  by 
subscribing  his  own  name,  or  that  of  any  other 
licensed  attorney  or  party  to  the  action,  in  any  court 
of  record  of  the  State  of  Colorado. 

He  also  becomes  liable  to  an  action  for  the  recov- 
ery of  all  moneys  which  shall  have  been  paid  to  him 
for  fees  and  services  by  him  rendered  as  an  attorney 
and  counselor,  while  so  disbarred,  as  for  money  had 
and  received  to  the  use  of  the  person  paying  the 
same  to  him  ;  and  also  to  a  qui  tain  action  for  three 
times  the  amount  paid,  at  the  suit  of  any  person,  etc., 
as  provided  in  section  207  of  Mills'  Statutes. 

But  he  is  authorized  to  commence  or  defend  any 
action  in  a  court  of  record  in  which  he  is  a  bo7ia  Jide 
plaintiff  or  defendant  ;  but  he  must  not  become  such 
for  the  purpose  of  evading  the  effect  of  his  disbar- 
ment, by  acquiring  an  interest  in  the  cause  of  ac- 
tion for  the  purpose  of  bringing  suit  in  his  own  name, 

'  Mills'  Ann.  Stat.,  §  202. 


38o  Practice  in  Courts  of  Review. 

or  defending  it  as  a  party  thereto.  This  is  the  rul- 
ing of  the  District  Court  of  Arapahoe  county  in  a 
recent  case. 

Attorney  Who  Has  Been  Disbarred  May  Apply 

FOR     ReADMISSION. 

Sec.  207.  The  same  section  of  the  statute  provides 
that  the  justices  of  the  Supreme  Court  may,  in  open 
court,  authorize  an  attorney  who  has  been  disbarred 
to  again  sign  or  subscribe  the  roll  of  attorneys.  This 
is  done  on  petition  to  the  court,  and  is  usually  sup- 
ported by  the  affidavits  of  attorneys  and  other  per- 
sons in  good  standing  that  the  delinquent  attorney 
has  so  far  repaired  the  wrong  and  delinquency,  for 
which  he  was  disbarred,  that  it  seems  proper  to  per- 
mit him  to  again  sign  the  roll  and  resume  the  duties 
of  an  attorney  in  the  courts  of  this  State.  The 
granting  of  this  permission  is,  however,  a  matter  of 
pure  discretion  on  the  part  of  the  court  and  will  be 
granted  by  it  only  when  satisfied  that  the  delin- 
quency is  not  the  result  of  moral  turpitude,  and  does 
not  show  a  want  of  moral  fitness  to  practice  at  the 
bar  of  the  courts.  Where  the  party  has  been  con- 
victed of  a  grave  violation  of  the  Criminal  Code,  es- 
pecially a  felony,  such  as  embezzlement,  larceny, 
forgery  and  similar  offenses,  the  court  will  rarely,  if 
ever,  permit  a  restoration  to  the  roll  of  attorneys. 

It  has  also  in  one  case  been  held  in  Colorado  that 
a  pardon  by  the  governor  of  the  offense  committed, 


Readmission.  381 

for  which  the  disbarment  was  inflicted,  will  not 
have  the  effect  of  restoring  the  delinquent  to  prac- 
tice, since  the  question  of  admission  or  of  readmis- 
sion to  practice  as  an  attorney  is  exclusively  within 
the  province  of  the  judicial  department  of  the  State, 
with  which,  under  the  Constitution,  the  executive  can- 
not in  any  manner  interfere  to  control  its  discretion. 


382  Practice  in  Courts  of  Review. 


CHAPTER    XIV. 
Contested  Elections. 

Sec.  208.  Contests  of  election  of  judges. 

209.  Contest,  how  initiated. 

210.  Contents  of  statement. 

211.  Grounds  for  contesting  election. 

212.  Statement  continued. 

213.  Time  of  filing  statement. 

214.  The  petition  contents. 

215.  Procedure  after  filing  petition. 

Contests  of  Election  of  Judges. 

Sec.  208.  Section  1656  of  Mills'  Annotated  Statutes 
gives  the  Supreme  Court  original  jurisdiction  for 
the  adjudication  of  contests  of  the  election  of  any 
person  to  the  office  of  supreme,  district  or  county 
judge,  and  empowers  it  to  prescribe  rules  for  prac- 
tice and  proceedings  in  conducting  such  contests  in 
said  court.  This  act  is,  in  pursuance  of  section  12 
of  article  VII  of  the  Constitution,  which  authorizes 
the  General  Assembly  to  designate,  by  general  law, 
the  courts  and  judges  by  whom  the  several  classes 
of  election  contests,  not  in  the  Constitution  pro- 
vided for,  shall  be  tried,  and  regulate  the  manner  of 
trial  and  all  matters  incident  thereto,  The  consti- 
tutionality of  the  section  of   the   General    Statutes. 


Contests  —  Procedure.  383 

above  cited,  has  been  affirmed  in  the  case  of  Allen 
V.  Glynn,  a  contest  pending  in  the  Supreme  Court, 
involving  the  office  of  district  judge  of  the  thir- 
teenth judicial  district.  In  pursuance  of  the  above- 
cited  statute,  the  Supreme  Court  has  adopted  rules 
39  to  46,  inclusive,  for  the  conduct  of  such  contests 
therein. 

Contest,   How  Initiated. 
Sec.  209.    Section  39  is  as  follows  : 

"Any  qualified  elector,  wishing  to  contest  the  elec- 
tion of  any  person  to  the  office  of  supreme,  district 
or  county  judge  shall,  within  thirty  days  after  the 
canvass  by  the  State  board  of  canvassers,  in  case 
of  the  supreme  or  district  judge,  and  within  twenty 
days  after  the  canvass  by  the  county  board  of  can- 
vassers, in  the  other  case,  file  a  written  statement  of 
his  intention  to  contest,  in  the  office  of  the  secre- 
tary of  State,  in  the  case  of  the  supreme  or  district 
judge  ;  and  where  the  contest  is  for  the  office  of 
county  judge,  in  the  office  of  the  county  clerk  of  the 
county,  in  which  the  person  whose  election  to  the 
office  of  county  judge  is  to  be  contested  resides; 
which  statement  or  motion  shall  set  forth  : 

"  First.   The  name  of  the  contestor. 

"  Second.  The  name  of  the  contestee. 

"  Third.   The  office. 

"  Fourth.  The  time  of  the  election. 

"  Fifth.   The  particular  cause  of  contest. 


384  Practice  in  Courts  of  Review. 

"  The  statement  shall  be  verified  by  the  affidavit  of 
the  contesting  party,  that  the  causes  set  forth  are 
true,  as  he  verily  believes." 

To  institute  a  contest  the  first  requirement  is  that 
the  contestor  be  a  qualified  elector.  This  is  held  to 
be  an  essential  and  traversable  averment,  which,  if 
denied  by  contestee  in  his  answer,  must  be  estab- 
lished by  proofs  on  the  trial.^ 

A  qualified  elector  is  one  who,  under  the  Constitu- 
tion and  laws  of  the  State,  is  authorized  to  vote  for 
that  particular  office  at  the  election  at  which  the 
person  whose  election  is  contested,  claims  to  have 
been  elected.  To  contest  the  election  of  supreme 
judge,  he  may  be  an  elector  of  any  county  within  the 
State.  If  the  contest  be  of  the  election  of  a  district 
judge,  it  seems  that  no  one  but  an  elector  of  that 
judicial  district  can  initiate  the  contest,  and  in  like 
manner  no  one  but  a  qualified  elector  of  the  county 
can  initiate  a  contest  of  the  election  of  a  county 
judge. 

The  contest  is  initiated  not  in  the  name  of  the 
people,  but  in  the  name  of  the  contestor,  for  no 
authority  is  given  by  any  statute  to  any  public  officer 
or  private  individual  to  institute  an  election  contest 
in  the  name  of  the  people.  Its  primary  object  is  to 
determine  the  claim  of  the  contestor  to  the  particu- 
lar office." 


'  Clanton  v.  Ryan,  14  Colo.  419. 
^  People  V.  Londoner,  13  Colo.  310. 


Statement.  385 

Contents  of  Statement. 

Sec.  210.  The  statement  of  intention  to  contest 
the  election  of  a  judge,  whether  supreme,  district  or 
county  judge,  must  state  the  several  matters  speci- 
fied in  the  above  rule.  The  specification  (4th)  of 
the  time  of  the  election  is  particularly  required  to 
show  that  the  notice  of  intention  to  contest  has 
been  filed  in  apt  time,  as  limited  by  the  rule.  The 
fifth  specification  requires  a  statement  of  the  partic- 
ular grounds  on  which  the  contest  is  based.  The 
grounds  of  contest  specified  in  the  statute  seem  to  be 
applicable  only  to  contests  of  county  officers,  other 
than  county  judges,  but  it  is  apparent  that  they  will 
be  good  grounds  for  a  contest  in  all  cases,  if  the 
matters  stated,  supported  by  adequate  proof,  will 
suffice  to  change  the  result  of  the  election,  and  give 
the  office  to  the  contestor. 

Grounds  for  Contesting  Election. 

Sec.  211.  The  first  ground  specified  in  the  statute 
is  fraud,  malconduct  or  corruption  on  the  part  of  the 
election  judges  of  any  election  precinct,  or  of  the 
board  of  canvassers  of  any  county,  or  of  the  State 
board  of  canvassers,  or  of  any  member  of  such  board, 
when  such  malconduct,  fraud  or  corruption  has  con- 
tributed to  changing  the  result  of  the  election.  In 
reo-ard  to  the  alleeations  of  fraud  to  be  made  in  the 
statement  or  petition,  the  Supreme  Court  says  :  "  A 
49 


386  Practice  in  Courts  of  Review, 

general  averment  of  fraud  should  be  treated  as  in- 
sufficient." ^  The  specific  acts  of  fraud,  malconduct 
or  corruption  should  be  stated,  and  by  whom,  and  in 
whose  interest  they  were  committed,  and  whether 
they  were  committed  by  the  advice,  consent  or  con- 
nivance of  the  contestee. 

Thus,  where  the  election  officers  willfully  and 
fraudulently  rejected  a  sufficient  number  of  votes 
offered  by  qualified  voters  of  the  precinct,  which,  if 
they  had  been  received,  would  have  elected  the  con- 
testor,  the  names  of  the  voters  should  be  given  and 
that  they  were  duly  qualified  voters,  entitled  to  vote 
in  the  precinct  in  which  their  votes  were  rejected. 
The  statement  should  show  how  many  candidates 
were  voted  for  for  the  office  contested  at  that  election  ; 
how  many  votes  were  given  for  each  candidate  for 
such  office,  and  that  if  the  fraudulently  rejected  votes 
had  been  counted  the  result  of  the  election  would 
have  been  different. 

So,  if  it  is  claimed  that  illegal  votes  have  been 
deposited  and  counted  on  the  canvass  of  the  vote, 
the  petition  or  statement  should  show  who  the  illegal 
voters  were,  and  why  they  were  not  legal  voters. 
This  with  the  other  facts  above  shown  to  be  neces- 
sary to  insert  in  the  statement,  will  tend  to  show  that 
such  illegal  votes  operated  to  change  the  result  of 
the  election.  But  it  has  been  held  in  some  of  the 
States,  under  the  new  so-called  Australian  ballot  laws, 

iTodd  V.  Stewart,  14  Colo.  286. 


Grounds  for  Contest.  387 

that  in  an  election  contest  no  allegation  of  the  de- 
posit of  illegal  votes  is  admissible,  unless  it  is  also 
alleged  that  such  votes  were  challenged  at  the  time 
of  their  deposit,  and  the  challenge  was  overruled  or 
disregarded  by  the  election  judges. 

So,  where  it  is  claimed  that  the  registers  of  the 
voters  in  the  precinct  fraudulently,  willfully  and 
corruptly  struck  from  the  registry,  or  willfully,  cor- 
ruptly and  fraudulently  added  to  the  registry  names, 
such  names  should  be  stated,  and  the  precinct  and 
county  in  which  such  acts  were  done. 

As  the  main  object  of  an  election  contest  is 
to  purge  the  ballot-box  of  illegal  votes,  and  to 
correct  the  count  of  the  votes,  if  it  is  alleged  that 
an  incorrect  count  was  had  by  the  canvassers,  it 
seems  that  the  court  cannot  count  any  vote  for  the 
contestor,  unless  it  has  been  actually  deposited  in  the 
ballot-box  at  the  time  of  the  election.  Hence  the  state- 
ment of  votes  for  the  contestor,  if  they  had  not  been 
illegally  rejected,  will  have  no  effect  on  the  contest 
other  than  as  they  may  show  such  fraud  as  to  require 
the  court  to  reject  the  entire  vote  of  that  precinct. 

Another  ground  of  contest  is  that  the  contestee  is 
ineligible  to  the  office.  This  may  arise  from  alien- 
age, or  not  being  a  resident  of  the  State  or  judicial 
district  or  county,  the  statutory  period  of  time,  as 
the  case  maybe.  In  such  case  the  statement  should 
give  the  probative  facts,  and  not  merely  the  con- 
clusions of  the  contestor. 


388  Practice  in  Courts  of  Review. 

Statement  Continued. 

Sec.  2  12.  The  statement  or  petition,  besides 
averring  that  contestor  is  a  qualified  elector,  as 
above  stated,  and  the  grounds  upon  which  he  con- 
tests, should  also  state  when  the  board  of  canvassers 
met  and  declared  the  result  of  the  election  for  the 
office  in  contest.  The  law  only  permits  a  contest  to 
be  initiated  after  the  canvass  has  been  made  and  the 
result  of  the  vote  declared. 

Canvass.— Time  of    Filing  Statement. 

Sec.  213.  The  rule  prescribes  that  the  notice  or 
statement  must  be  filed  within  thirty  days  after  the 
canvass  by  the  State  board  of  canvassers,  in  the 
case  of  a  supreme  or  district  judge,  and  within  twenty 
days  after  tlie  canvass  by  the  county  board  of  can- 
vassers in  the  case  of  a  county  judge. 

The  statute  prescribes  that  the  State  board  of 
canvassers  shall  meet  on  the  twenty-fifth,  or  in 
case  the  twenty-fifth  be  on  Sunday,  on  the 
twenty-sixth  day,  after  the  day  of  the  election,  and 
if  all  returns  are  then  in,  shall  proceed  to  can- 
vass the  said  returns.  If  the  returns  are  not 
in  they  may  adjourn  from  time  to  time,  until  all 
of  the  returns  are  received.  But  whether  all  returns 
are  received  or  not,  the  canvass  must  be  made  on 
the  last  Wednesday  of  December  next  after  such 
election.     The  question  to  be  determined  when  the 


Canvass  —  What.  389 

computation  of  the  time  for  filing  a  statement  is  in 
issue  is  what  is  understood  by  the  word  "  canvass  " 
in  the  statute  and  rule. 

Section  1202,  in  stating  the  duties  of  the  county 
clerk  and  the  associate  justices,  requires  them  to 
make  out  on  separate  sheets  an  "  abstract "  of  the 
vote  cast  for  judges  of  the  Supreme  Court,  and  on 
other  separate  sheets  an  "abstract"  of  the  vote  cast 
for  district  judge.  These  separate  sheets  are  then 
sent  to  the  secretary  of  State  from  each  county  in 
the  State,  and  by  section  1209,  the  State  board  of 
canvassers  are  required  to  tabulate  such  statements 
and  ascertain  who,  of  the  persons  voted  for  at  such 
election  for  each  office,  has  received  the  highest 
number  of  votes.  If  any  two  candidates  for  the 
same  office  receive  an  equal  number  of  the  votes 
cast  for  that  office  and  the  highest  for  such  office, 
the  State  board  must  give  the  candidates  between 
whom  such  tie  exists  notice  of  the  time  and  place, 
and  at  such  time  and  place  determine  by  lot  which  of 
the  two  candidates  shall  receive  the  certificate  of 
election.  The  result  of  such  canvass  must  be  certi- 
fied to  the  secretary  of  State,  who  thereupon  issues 
to  the  candidate  who  has  received  the  highest  num- 
ber of  votes  a  certificate  of  his  election.  In  the  case 
of  Bowler  v.  Eisenhood,  decided  by  the  Supreme 
Court  of  South  Dakota,  February,  1891,  this  ques- 
tion was  directly  decided  upon  a  statute  almost  liter- 
ally identical  with  that  of  Colorado,  and  it  was  held 


390  Practice  in  Courts  of  Review. 

that  tiie  number  of  days  for  giving  notice  of  contest 
dated  from  the  public  declaration  of  the  vote,  and  in 
the  case  of  a  tie,  from  the  decision  by  lot. 

It  seems,  therefore,  that  the  word  "canvass"  will 
be  held  to  include  every  step  in  the  proceeding  until 
the  certificate  of  the  board  of  canvassers  is  made  out 
and  delivered  to  the  secretary  of  State,  in  the  case 
of  supreme  and  district  judges.  The  statute  does 
not  seem  to  prescribe  the  recording  of  any  statement 
of  the  result  of  the  votes  for  county  officers,  and 
hence  the  twenty  days  seem  to  begin  from  the  day 
of  the  meeting  of  the  county  board  of  canvassers, 
on  which  they  finally  adjourned. 

In  the  case  of  Vailes  v.  Brown,  15  Colo.  462,  the 
Supreme  Court  held  that  the  day  of  making  the  can- 
vass of  the  votes  must  be  excluded  from  the  compu- 
tation of  time  for  filinof  the  statement,  since  the  word 
"after"  is  used  in  the  law;  but  that  the  notice  can- 
not be  filed  on  Monday,  if  the  last  of  the  twenty  or 
thirty  days  allowed  for  filing  it  be  a  "  Sunday." 

The  Petition  —  Contents. 
Sec.  214.  The  statement  or  notice  of  contest  is 
required  to  be  verified  by  the  affidavit  of  the  con- 
testing party,  and  is  thereupon  filed,  in  case  of  a 
county  judge,  in  the  office  of  the  county  clerk,  and 
in  the  case  of  a  district  or  supreme  judge,  in  the 
office  of  the  secretary  of  State,  who  are  required  to 
preserve  the  same  in  their  respective  offices. 


Petition.  391 

Within,  that  is,  before  the  expiration  of,  thirty  days 
after  the  fihne  of  the  statement  of  contest,  as  re- 
quired  by  rule  39,  the  contestor,  or  some  one  acting 
on  his  behalf  or  in  his  interest,  is  required  to  file  a 
petition,  duly  verified  by  the  oath  of  some  credible 
person,  in  the  office  of  the  clerk  of  the  Supreme 
Court.  The  petition  shall  set  forth  the  filing  of  the 
statement  of  contest  and  the  particular  grounds 
therefor.  Any  ground  of  contest,  which  will  show, 
that  the  result  was  procured  by  fraud,  corruption  of 
judges,  their  malconduct,  or  willful  violation  of  the 
mandatory  provisions  of  the  election  law,  or  that  the 
person  declared  elected  was  ineligible  at  the  time  of 
the  election  is  a  good  ground  for  contest.  So  also  is 
the  rejection  of  legal  votes,  or  the  admission  of  ille- 
gal votes  by  the  election  judges.  Under  the  Election 
Acts  of  1891  watchers  and  challengers  are  authorized 
at  each  polling  place,  and  hence,  if  such  watchers 
and  challengers  are  improperly  excluded  from  the 
place  of  election,  the  petition  should  show  that  the 
watcher  had  been  duly  selected  in  compliance  with 
the  statute,  and  his  selection  as  a  watcher  made 
known  to  the  election  judges,  and  that  by  reason  of 
the  enforced  absence  of  such  watcher  and  challen- 
gers, persons  who  were  not  entitled  to  vote  at  such 
election  were  permitted  to  vote  without  proper  in- 
vestigation. So  if  it  be  alleged  that  in  any  precinct 
votes  were  received  after  the  statutory  hour  for 
closing  the  polls  had  arrived,  the   number  of  such 


392  Practice  in  Courts  of  Review 

votes  should  be  stated,  and  the  names  of  the  persons 
so  voting. 

In  stating  the  grounds  of  contest  the  contestor  is 
to  be  governed  by  the  rules  of  pleading,  as  to  defi- 
niteness  in  his  statements  of  his  grounds  of  contest. 
But  the  fundamental  and  essential  averment  of  the 
petition  is  that  the  result  of  the  election  was  different 
from  what  it  would  have  been  had  not  the  matters 
alleged  as  grounds  of  the  contest  occurred.  For  no 
matter  what  may  have  been  the  malconduct,  or  cor- 
ruption of  the  judges,  or  other  irregularities,  if  the 
result  of  the  election  would  have  been  the  same,  no 
contest  will  lie,  except  where  the  contestee  was 
ineligible. 

Procedure  After  Filing  Petition  —  Summons. 

Sec.  215.  Upon  the  filing  of  the  duly  verified  peti- 
tion, the  clerk  issues  a  summons,  tested  in  the  name 
of  the  chief  justice,  under  the  seal  of  the  court, 
siened  bv  the  clerk  and  directed  to  the  sheriff  of 
the  county  where  the  defendant  resides  or  may  be 
found,  which  summons  shall  be  returnable  in  not  less 
than  ten  nor  more  than  thirty  days  from  its  date, 
and  shall  command  the  defendant  therein  named  to 
be  and  appear  before  the  Supreme  Court,  by  a  day 
therein  named,  to  answer  to  the  complaint  of  the 
plaintiff  in  that  behalf.  The  rule  does  not  explicitly 
require  a  copy  of  the  complaint  to  be  served  with 
the  summons,  but  this  requirement   may  be  implied 


Summons.  393 

from  the  rule  that  it  be  served  in  the  same  manner 
that  Hke  writs  are  served  from  a  District  Court,  and 
that  it  be  also  served  by  copy,^ 

Upon  service  of  the  summons  the  sheriff  returns 
it  to  the  clerk  of  the  Supreme  Court,  with  his  cer- 
tificate of  service  indorsed  thereon,  and  it  is  there- 
upon filed  in  the  action. 

On  the  return  day  of  such  summons,  if  it  appear 
from  the  certificate  of  service  that  due  service  of  the 
writ  has  been  made  on  the  defendant  named  therein, 
if  no  appearance  is  entered  for  the  defendant,  the 
Supreme  Court  may  enter  his  default  and  grant  the 
proper  relief,  either  with  or  without  proof  of  the  alle- 
gations of  the  complaint,  as  in  its  judgment  is  proper. 

If  defendant  answer  the  petition  he  is  required  to 
file  a  properly  verified  answer.  The  petition  and 
answer  constitute  the  pleadings  in  the  case.  No 
replication  to  new  matter  set  up  in  the  answer  is 
required,  such  new  matter  being  deemed  to  be  con- 
troverted bv  contestor  at  the  hearing.  The  suffi- 
ciency  of  either  petition  or  answer  may  be  questioned 
by  demurrer.  Every  material  averment  of  the  peti- 
tion which  is  not  controverted  in  the  answer  is  to  be 
deemed  to  be  admitted.  If  either  petition  or  answer 
be  found  defective  on  demurrer  it  will  be  permitted 
to  be  amended  on  terms.'^ 

After  the  issues  are  made  up  the  court  decides  the 
case  without  the  intervention  of  a  jury.      As  no  con- 

'  Rule  41  3  Rule  42. 

35 


394  Practice  in  Courts  of  Review. 

stitutional  provision  requires  a  jury  in  civil  cases  the 
parties  are  not  entitled  to  a  jury,  as  a  matter  of 
right,  and  the  practice  of  the  Supreme  Court  does 
not  admit  of  impaneling  a  jury  in  that  court. 

No  oral  testimony  of  witnesses  is  heard  in  open 
court.  All  evidence  is  written,  being  either  the 
papers  relating  to  the  election  contested,  such  as 
ballots  and  such  like  documents,  and  the  evidence 
of  witnesses  taken  by  the  respective  parties  by 
deposition. 

After  the  issues  are  formed,  and  the  questions  to- 
be  determined  by  oral  or  written  evidence  ascer- 
tained, either  party  may  have  the  deposition  of  any 
witness  on  his  behalf  taken  before  any  judge  (other 
than  the  contestee),  clerk,  notary,  or  justice  of  the 
peace,  upon  giving  to  the  adverse  party  not  less  than 
ten  days'  notice  of  the  time  and  place  of  taking  such 
examination.  At  such  examination  either  party  may 
propound  such  interrogatories,  direct,  cross  and 
redirect,  as  may  be  proper.  No  commission  or  writ- 
ten interrogatories  are  required.  The  rule  seems  to 
contemplate  the  following  of  the  provisions  of  sec- 
tion 343  of  the  Code.  No  objection  to  the  form  of 
any  interrogatory  in  the  deposition  will  be  enter- 
tained at  the  hearing,  unless  such  objection  was 
made  at  the  time  of  taking  the  deposition,  and  is 
noted  therein  by  the  officer  who  took  it.  Upon  the 
completion  of  the  deposition  of  each  witness,  it  shall 
be  carefully  read  to  him,  and  may  be  corrected   by 


Procedure. 


395 


him  in  any  particular  in  which  he  may  desire  to  cor- 
rect it.  It  must  then  be  subscribed  by  him  and  be 
sworn  to  by  him.  The  officer  taking  such  deposition 
must  then  certify  to  such  deposition,  stating  in  such 
certificate  all  facts  necessary  to  show  that  the  depo- 
sition has  been  properly  and  duly  taken  ;  and  after 
making  such  certificate  under  his  hand  and  seal, 
if  he  have  one,  he  must  inclose  such  deposition  in  an 
envelope  or  wrapper,  and  transmit  it  to  the  clerk  of 
the  Supreme  Court,  properly  indorsed  with  the  title 
of  the  cause.  When  so  transmitted  and  filed,  either 
party  may  use  such  deposition  at  the  hearing,  subject 
to  all  legal  exceptions.^ 

Except  the  oral  examination  of  witnesses,  which  is 
unusual,  but  may  be  had  at  the  option  of  the  court 
when  the  court  considers  it  desirable,  and  the  trial 
by  jury,  all  tne  rules  as  to  course  of  procedure  at 
the  trial,  and  as  to  the  admissibility,  relevancy  and 
exclusion  of  evidence,  as  prescribed  in  trial  courts, 
are  followed  on  the  trial  of  the  contest  so  far  as  they 
may  be  capable  of  application  thereto.  As  no  re- 
view of  the  cause  can  be  had  in  any  other  court, 
by  appeal  or  writ  of  error,  a  bill  of  exceptions  is  not 
taken,  though  exceptions  may  be  taken  and  reserved, 
to  be  used  on  a  motion  for  a  new  trial  or  rehearing, 
that  the  court  may,  on  such  rehearing,  review  its 
rulings  at  the  trial,  and  change  or  modify  them  in 
the  final  decision. 

'  Rule  43- 


396  Practice  in  Courts  of  Review. 

The  court  then  follows  the  usual  course  of  the 
court,  and  places  the  cause  on  the  submission  docket 
for  final  determination  and  a  written  opinion.  It 
makes  all  orders  and  issues  all  writs  proper  to  en- 
force and  carry  into  effect  its  judgment  and  decision 
in  the  case,  adjudges  the  costs  against  the  losing 
party,  and  acts  in  all  respects,  in  such  cases,  in  the 
same  manner  as  a  trial  court  does.  There  is  in  the 
reports  no  case  of  the  contest  of  an  election  of  a 
supreme  judge,  but  one  case  unreported,  and  at  this 
writing  undetermined,  of  a  contest  in  the  case  of  a 
district  judge,  which  is  probably  to  be  found  in  the 
17th  vol.  of  Colorado  Reports,  when  published,  and 
only  a  few  cases  of  contests  of  the  election  of  county 
judges.  Hence  but  a  few  decisions  can  be  cited  from 
the  Colorado  Reports,  though  many  of  the  decisions 
made  in  the  cases  of  election  contests  brought  to  the 
Supreme  Court  from  trial  courts  will  be  found  appli- 
cable in  matters  which  occur  in  both  classes  of  cases. 

The  foregoing  pages  conclude  this  little  book  on 
Procedure  in  the  Courts  of  Review  of  the  State  of 
Colorado,  as  indicated  by  the  decisions  of  the  Su- 
preme Court  of  the  State. 


INDEX. 


Abstract  of  the  record :  sj^^, 

form  of,  prescribed j ,  c 

eight  copies  required 145 

when  defendant  may  file 145 

a  mere  index  not  treated  as  an .    145 

when  deficient  appeal  or  writ  of  error  may  be  dismissed. . .    145 
when  must  be  filed 148 

Advancement  of  causes 153 

Adjournment 6 

included  in  computation  of  term 149 

Affidavit.     See  Motion;  Scire  Facias. 

Affirmance  or  dismissal :  4 

procedure  on 158 

judgment  of,  copy  to  be  filed  in  trial  court 158 

Agreed  case : 

what  is  an 154 

must  be  a  real,  subsisting  controversy 154 

when  will  be  entertained 1 54 

affidavit  required  in  an       154 

Court  of  Appeals,  no  jurisdiction  of 154 

Amendment : 

of  appeal  bonds 28,  1 78 

writs  of  error 36 

Appeal : 

what  is  an 169 

to  Supreme  or  appellate  court 168 

a  creature  of  the  statute  only 169 


398  Index. 

Appeal  —  Continued.  sec. 

law  governing  found  in  Civil  Code  onl}'- 170 

how  to  be  taken  —  procedure   170 

allowance  of  —  discretion  of  judge 155 

record  of  trial  court  reviewed  on 169 

efifect  of,  suspends  but  does  not  vacate  the  judgment  of  the 

trial  court 169 

differs  from  an,  from  the  County  to  the  District  Court    . . .  168 

judgment  on .  -    32.  44<  1 55 

any  defendant  may 3^ 

usual  procedure  of  court  of  review 155 

dismissal  of,  "  without  prejudice." 33 

from  Court  of  Appeals  to  Supreme  Court 22 

to  Court  of  Appeals 17 

when  to  be  prayed . .    17° 

five  days,  how  computed 170 

may  be  prayed  and  allowed  in  vacation 170 

not  allowed  in  criminal  cases    r7i 

in  contempt  cases 171 

i  n  quo  ivarranfo 171 

in  orders  made  after  final  judgment,  when 171 

direct  to  Supreme  Court,  when I73 

joint,  when  maintainable I75 

bond,  form  of  , 176 

when  allowable  without  bond   I77 

bonds  amendable 1 78 

bond  by  attorney  in  fact 178 

when  to  be  docketed I79 

when   "  made  " I79 

application  for  further  time  to  docket I79 

when  jurisdiction  of  appellate  court  attaches iSo 

procedure  by  appellee  on 181 

when  dismissed,  causes  for 182 

Appeals: 

Court  of ■ 16 

a  court  of  record 18 

may  issue  writs  necessary 18 

seal .      18 

judges  of 16 


Index.  399 

Appeals  —  Continued.  sec. 

Court  of,  jurisdiction  appellate  only i6 

jurisdiction  as  to  subject-matter 17 

may  adopt  rules 19 

procedure  of,  similar  to  that  of  Supreme  Court 19 

terms,  wliere  to  be  held 21 

has  no  original  jurisdiction 55 

cases  transferable  from  Supreme  Court  to  the     ...   20,     56 
cases  transferable  from,  to  the  Supreme  Court      . .   23,     57 

writ  of  error  from  Supreme  Court  to 20,    167 

writ  of  error  in  all  criminal  cases 55 

jurisdiction  concurrent  with  Supreme  Court 59,    167 

no  jurisdiction  in  capital  cases 59 

application  for  transfer  to  Supreme  Court 58 

jurisdiction  in  cases  less  than  $100 24 

Appearance  : 

29 
29 
29 
29 
29 


entry  of,  to  writ  of  error , 

form  of  entry  of 

notice  of  entry,  five  days 

general,  effect  of 

special 

Assignment  of  errors : 

is  a  pleading  of  assignor  of  the  errors 

indispensable  to  procure  review 

must  be  written 

must  be  attached  to  record 

oral  not  permitted 

error  assigned  must  be  prejudicial  to  party  assigning  it. .  . 
what  assignable  as  error 

want  of  jurisdiction . .    .  . 

want  of  sulhcient  facts 

errors  in  record  proper  ....    

errors  found  in  bill  of  exceptions 

matters  of  judicial  discretion 

challenge  of  juror  in  civil  case 

of  juror  in  criminal  case  

in  instructions,  giving 


refusing.  . . 
modifying. 


14 

14 
14 
14 

22 

14 
16 

16 

17 
18 

•9 
20 

21 

21 

22 

22 

22 


400  Index. 

Assignment  of  errors  —  Contmued.  sec. 

rule  of  Supreme  Court  as  to  assigning  error  on  instructions.   122 

form  of 1 23 

must  be  signed  by  an  attorney 123 

cross  errors 1 36 

in  criminal  cases    136,    162 

governed  by  same  rules  as  in  civil  cases 114 

Attorney  : 

admission   of 197 

license  necessary 197 

qualifications  to  obtain  license 198 

certificate  of  good  moral   character 198 

certificate  of  two   years' study 198 

requirement  by  rule  of  court.    199 

standing  committee  to  examine  for  license 200 

procedure  before 200 

oath,  form  of. 201 

roll  of  attorneys 202 

foreign,  when  may  be  admitted 203 

when  one  becomes  a  qualified  attorney 203 

name  of,  power  to  strike 204 

cause  of  striking  name   from  roll.    204 

procedure  to  strike   name 205 

effect  of  disbarment  of 206 

disbarred  may  apply  for  readmission 207 

B 

Briefs  of  counsel : 

what  to  contain 147 

authorities  to  be  cited  in,  how 147 

State  courts  —  decisions  of,  to  be  cited 147 

when  and  how  many  to  be  filed 148 

for  appellee  or  defendant  in  error 148 

reply  for  appellant  or  plaintiff  in  error 148 

extension  of  time  to  file 148 

motion  for  leave  to  file  after  time 1 50 


Index.  401 

C  SEC. 

Court,  term  of i49 

Contested  elections.     See  Elections  of  Judges. 

Criminal  cases ^59 

trials  in,  as  at  common  law 1 59 

Civil  Code  not  applicable  to 1 59 

record  in,  as  at  common  law 90 

writ  of  error  a  writ  of  right,  in 160 

allowed  by  statute 160 

by  what  statute  governed 80 

in  capital  cases 1 60 

essential    160 

does  not  lie  on  behalf  of  the  people  in     73 

no  statute  of  limitations  as  to  suing  out 75 

bill  of  exceptions  not  allowed  in,  at  the  common  law 160 

bill  of  exceptions  allowed  by  statute  in 98 

jurisdiction  of  Court  of  Appeals  in 160 

supersedeas,  how  obtained  in 164 

how  served  in 79 

condition  of  bond  on 82 

effect  of,  bail 165 

procedure  after  obtaining   164 

Cross  errors.     See  Assignment  of  and  Joinder  in. 

E 

Elections  of  judges: 

contests  of 208 

Supreme  Court  has  original  jurisdiction  of 208 

contest,  how  initiated 209 

contestor  must  be  an  elector 209 

contest  conducted  —  in  whose  name 209 

statement  of  intention  to  contest 210 

grounds  of  contest 211 

canvass  of,  what  is  the 213 

statement,  time  for  filing 213 

petition,  contents  of 214 

must  be  verified. 214 

procedure  after  filing 215 

51 


/ 


402  Index. 

Election  of  judges  —  Continued.  sec. 

petition,  summons  to  parties 215 

answer  must  be  verified 215 

trial  of  contest  by  tlie  court 215 

depositions  in  contest,  liow  taken 215 

Error: 

writ  of,  what  is  a 66 

proceeding  is  a  new  action 66 

can  be  brouglit  only  on  a  final  judgment 66 

is  common-law   process 66 

is  in  force  in  Colorado  by  statute 66 

how  it  exists  in  Colorado 66 

is  an  original  writ 0 66 

how  it  is  issued 66 

what  it  must  describe 66 

sole  office  of 66 

defendant  in  error  not  concerned  with 66 

to  what  it  may  be  taken 67 

parties  to 68 

when  improper  parties  joined   7° 

when  necessary  parties  omitted 70 

objection,  when  to  be  made 7° 

writ  issues  on  application  to  clerk 71 

lies  only  to  a  final  judgment 73 

lies  to  every  final  judgment 73 

what  entitles  party  to  bring 73 

when  it  will  not  lie 73 

proceedings  after  judgment 74 

statute  of  limitations  as  to 75 

when  a  necessary  party  refuses  to  join  in 72 

no  limitations  in  criminal  cases 75 

is  section  2917,  Mills'  Statutes,  applicable  to 75 

how  to  procure  a 76 

rule  of  Supreme  Court  as  to 76 

contents  of 11 

issuance  of,  jurisdictional 7^ 

when  actual  service  indispensable 79 

clerk's  certificate  indorsed  on 79 

on  whom  to  be  served,  in  criminal  cases 79 


Index.  405. 

Error  —  Continued.  sec. 

return  on  writ  of,  when  made  a  "  supersedeas." 80 

procedure  to  obtain  a  supersedeas  on  a 81 

when  appeal  dismissed  "without  prejudice  " 84 

amendable 06 

record  necessary  on 88 

not  a  writ  of  right  in  capital  cases   160 

IS  a  writ  of  right  in  other  criminal  cases 160 

Exception  : 

what  is  an gc 

allowed  since  reign  of  Edward  1 94 

object  for  which  taken oc 

when  necessary 07 

when  to  be  taken .' .    g^^    140 

allowed  in  civil  cases    06 

allowed  in  criminal  cases 94^   161 

change  of  venue  not  subject  of,  in  a  criminal  case 96 

reasons  of  objection  to  be  stated no 

language  of,  must  be  unambiguous .  .........    .    no 

specific  ground  should  be  stated n  i 

general  objection  unadvisable i  n 

must  be  taken  at  proper  time no 

who  may  take  in  a  criminal  case 161 

procedure  when  objection  overruled n  i 

when  objection  sustained n  i 

to  judgment  must  be  taken,  when 109 

Exceptions,  bill  of : 

what  reviewable  only  by 94 

not  allowed  in  criminal  cases  at  common  law 94 

allowed  by  statute  of  Colorado 94,   161 

when  necessar)^  in  criminal  cases 98 

contents  of 10-' 

rulings  as  to  contents  of 108 

determination  as  to  contents,  a  judicial  act 108 

should  be  in  clear  and  intelligible  language 108 

what  should  be  incorporated  in  loS 

original  papers  not  to  be  incorporated  in 105 

depositions,  deeds,  etc 105 

reasons  of  objections  to  be  stated  in no 


404 


Index. 


Exceptions,  bill  of — Continued.  sec. 

when  several  bills  necessary ....    99 

practice  as  to  correcting 108 

should  be  submitted  to  adverse  party 98 

must  state  that  it  contains  ''  all  the  evidence  " 108 

stipulations  good  only  as  to  "  evidence  " 108 

cannot  be  made  by  stipulation 161 

amendment  of 108 

procuring  an  amended 112 

when  to  be  presented  to  judge 100 

practice  as  to  presenting  to  judge  . .    100 

time  within  which  to  present loi 

in  criminal  cases,  when  to  be  tendered 161 

in  criminal  cases,  when  to  be  signed 161 

when  judge  refuses  to  sign,  criminal  case loi,  161 

when  judge  refuses  to  sign,  civil  case loi 

when  judge  dies  before  signing loi 

when  judge  absent  from  State 103 

duty  of  judge  to  sign  and  seal,  when loi,  161 

unsealed  will  be  disregarded 91,  161 

original  may  be  filed  in  court  of  review 104 

transcribed  in  criminal  cases    104 

unauthorized  to  be  stricken  out,  motion  when  to  be  made.  .  100 

F 

Franchise 

jurisdiction  of  Supreme  Court 64 

defined 64,   173 

public  officers  not 63 

direct  appeal  to  Supreme  Court  in  case  of  a 173 

decisions  as  to  what  is  a I74 

Freehold: 

jurisdiction  of  Supreme  Court  in  cases  of 64 

(See  Franchise,  supra.) 

J 

Joinder  in  error I35 

is  defendant's  answer  to  assignment,  etc 135 

when  must  join  in  error 135 


Index.  405 

Joinder  in  error  —  Coniz'ttued.  sec. 

further  time  may  be  given 135 

form  of 135 

is  a  general  appearance 135 

effect  of  failing  to  file 135 

on  cross-errors 1 36 

forms  the  issue  to  be  tried 1 36 

issue  on  an  issue  of  law  only. 136 

Judgment  to  be  reviewed  must  be  a  final  judgment 60 

Instances  of  final  judgments: 

what  is  a  final  judgment 61 

classes  and  kinds  of 62 

on  demurrer 62 

on  a  verdict  of  a  jury 62 

by  default  for  want  of  an  answer,  etc. ...    62 

what  it  must  show 63 

common-law  forms  habitually  used 63 

Jurisdiction  of  Supreme  Court,  appellate 2 

original •  -  3 

limitation  to  appellate 15-  53'  59 

limitation  to  original 47 

practice  in  original  cases 49 

original  cases,  how  commenced 5^ 

original,  how  invoked 5° 

to  disbar  an  attorney 48 

of  Court  of  Appeals 55 

See  Appeals,  Court  of. 

N 

New  trial : 

motion  for  a,  not  necessar}'^  in  civil  cases 113 

necessary  in  criminal  cases 163 

o 

Opinions  on  cases  decided 156 


4o6  Index. 

P 

Plea:  sec, 

pleas  before  joining  in  error 1 34 

special  pleas  to  assignment  of  errors 139 

release  of  errors,  form  of 139 

R 

Record : 

what  constitutes  the,  at  common  law   86 

by  the  Code   87 

journal  entries  must  show  placita     86 

placita  essential 86 

transcript  of,  to  be  filed  in  court  of  review  86 

necessary  on  writ  of  error 88 

rule  8  of  Supreme  Court  as  to  transcript 88 

attorney  may  indicate  what  shall  be  inserted  in 88 

precipe  for  transcript 89 

form  of 90 

transcript,  form  of. 91 

only  evidence  of  contents  of  record 91 

must  be  authenticated 91 

deficiencies  in,  cannot  be  supplied  by  affidavits  ...  91 

procedure,  when  defective 92 

when  to  be  filed  on  appeal 93 

supplemental 137 

rule  of  court  as  to 137 

when  required 1 37 

diminution  of 138 

when  suggestion  of  diminution  will  not  be  entertained.  138 

form  of  suggestion  of  diminution. 138 

contents  of,  in  criminal  cases 162 

motions  and  exceptions  no  part  of  the 162 

Rehearing  in  Supreme  Court 1 57 

rule  of  the  courts  as  to 1 57 

application  for  a,  effect  of 1 57 

when  will  be  allowed    157 

does  not  extend  the  time  for  taking  an  appeal  to  Supreme 

Court 157 


Index.  407 

Rehearing-  in  Supreme  Court  —  Cofitinued.  sec. 

procedure  on  application  for 1 57 

additional  evidence  not  heard  on 1 57 

Rules  of  courts  of  review 145 


Scire  facias. 

summons  in  error 124 

when  to  issue 124 

to  whom  directed 1 24 

how  to  be  served 1 24 

alms  and  phiries 1 24 

when  to  be  made  returnable 125 

when  to  be  served  by  oublication .......    126 

ffidavit  for  publication 126 

must  be  specific 1 26 

sufficiency  of,  how  tested 1 26 

how  long  to  be  published , 126 

copy  to  be  sent  to  defendant  by  mail ...    1 26 

proof  of  publication.     . 126 

forms  of  affidavits 1 27 

Supersedeas  on  writ  ot  error* 

how  procured  in  civil  cases 80 

procedure  to  obtain   ...    loi 

bond 102 

must  be  approved 102 

must  be  filed 103 

form  of  bond     105 

return  on  writ,  when  made  a. 108 

in  criminal  cases    164 

in  capital  cases 164 

procedure  after  obtaining 164 

effect  of— bail 165 

Supreme  Court: 

judicial  power  of  State  be  vested  in 11 

shall  have  appellate  jurisdiction  only,  etc 11,     32 

original  jurisdiction  ot 11,     33 

judges  of,  quorum  . 12 

terms   ,f,  where  to  be  held 12 


4o8  Index. 

Supreme  Court  —  Contmtted.  sec. 

no  quorum  present,  adjournments 13 

special  terms  of 13 

power  of,  to  make  rules 13 

open  sessions   14 

oral  arguments  to  be  heard 14 

cases  undisposed  of  to  be  continued     15 

opinions  to  be  in  writing 15 

justice  of,  not  to  act  as  attorney 15 

disqualified  justice  not  to  sit  in  case 16 

when  justices  of,  equally  divided  in  opinion 16 

appellate  jurisdiction   of,  limitation 16,  46,  56 

appeals  to,  when  allowed  21 

limitation  on  original  jurisdiction  of 34 

original  jurisdiction  in  disbarment       .    35 

practice  in  cases  within  original  jurisdiction 36 

original  jurisdiction  of,  how  invoked 38 

original  cases,  how  to  be  brought  in 40 

jurisdiction  of  justices  of,  in  habeas  corpus 44 

may  allow  appeal  bonds  to  be  amended 25 

record  on  appeal,  when  to  be  filed  in 24,  131 

T 

Time,  computation  of: 

rule  as  to I49.  192 


Law  t  tdo  4  T»« 


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